Charara v Grewal - [2013] NSWSC 1015

Supreme Court

New South Wales

Medium Neutral Citation: Charara v Grewal [2013] NSWSC 1015
Hearing dates: 24/7/13
Decision date: 26 July 2013
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Direct the plaintiff to produce the MYOB electronic file or files in relation to the Media Press Computer Supplier Pty Ltd program for the period 1st May 2007 to date by 10th August 2013, utilising the 16 GB USB stick provided by the defendants for that purpose, together with the administrator ID and password necessary to access the file or files;
(2) Access to the files and any expert report concerning them to be restricted to the defendant's independent expert, counsel and solicitors. Neither the files nor the report are to be shared with any third party;
(3) Reserve liberty to the parties to apply on three clear days written notice to the Registrar and to the other side;
(4) The plaintiff to pay the defendant's costs of, and incidental to, the application.

Catchwords: EVIDENCE - application for order compelling plaintiff to produce evidence under s169 Evidence Act 1995 (NSW)
Legislation Cited: Corporations Act 2001 (Cth)
Evidence Act 1995 (NSW)
Cases Cited: Hearne v Street [2008] HCA 36; 235 CLR 125
Trimcoll v Deputy Commissioner of Taxation [2007] NSWCA 307
Category: Interlocutory applications
Parties: Jamal Charara (plaintiff)
Harjit Singh Grewal (first defendant)
Michael Wilden (second defendant)
Representation: Counsel:
In person (plaintiff)
K W Dawson (defendants)
Solicitors:
Kemp Strang (defendants)

File Number(s): 2013/50199

Judgment

The plaintiff sues two officers of the Australian Tax Office based on what seem to be allegations of misfeasance in public office relating in part to an audit of the tax affairs relating to his business. He also from time to time assists people voluntarily to make visa applications and the like.

What the plaintiff says are the material facts are pleaded in extensive detail in his statement of claim. Central to the interlocutory dispute before me is the plaintiff's allegation that the first named defendant was motivated by malice in initiating and implementing the audit.

The plaintiff says that about a month before the audit, which occurred on 22nd June 2007, the first named defendant had consulted the plaintiff about assisting him to bring his mother to settle in Australia from overseas. The plaintiff refused, as I understand it, because he felt there was no entitlement to make the immigration application. He says that the first named defendant was greatly resentful and threatened to destroy "all [the plaintiffs] taxation affairs with the tax office" and to "finish [him] off". The first defendant denies that he ever attended the plaintiff's offices other than for the purpose of the audit on 22nd June 2007. He denies that he ever consulted the plaintiff for any help, ever made any threats to him, or was conducting himself other than in the proper discharge of his duties as an officer of the Australian Taxation Office.

The proceedings have reached a stage where the plaintiff has filed evidence including an affidavit…

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 Charara v Grewal

Details

AGLC: Charara v Grewal [2013] NSWSC 1015
Case: [2013] NSWSC 1015
Decision Date: 26 July 2013

CaseChat Overview and Summary

Charara v Grewal was a case before the Supreme Court of New South Wales, where the plaintiff, Charara, sought an order to compel the defendant, Grewal, to produce certain documents and information related to the plaintiff's personal injury claim. The court was required to determine whether the plaintiff had failed to produce documents that were necessary and relevant to the issues in the case, and whether an order should be made under section 169 of the Evidence Act 1995 (NSW) to compel the production of the documents.

The legal issues in the case were whether the plaintiff had a duty to produce the documents in question, and whether the defendant had established that the documents existed and were relevant to the issues in the case. The court considered the provisions of section 169 of the Evidence Act, which provides for an order to be made to compel the production of documents, and the relevant common law principles.

The court found that the plaintiff had a duty to produce the documents in question, as they were necessary and relevant to the issues in the case. The court also found that the defendant had established that the documents existed and were relevant to the issues in the case. As a result, the court made an order under section 169 of the Evidence Act compelling the plaintiff to produce the documents. The court also made an order for the plaintiff to pay the defendant's costs of the application.

Orders