Charara v Grewal and Wilden
[2013] NSWSC 1724
•15 November 2013
Supreme Court
New South Wales
Medium Neutral Citation: Charara v Grewal & Wilden [2013] NSWSC 1724 Hearing dates: 8 November 2013 Decision date: 15 November 2013 Jurisdiction: Common Law Before: Barr AJ Decision: Plaintiff's claim is dismissed; The plaintiff is to pay the defendants' costs of the proceedings.
Catchwords: PROCEDURE AND EVIDENCE - claim inadequately pleaded - reasonable request to inspect documents - failure to comply with request - application for requested documents not to be admitted into evidence - right to test authenticity of evidence - failure to comply with court order - overseas travel no excuse for failure to comply - plaintiff claim dismissed - costs awarded Legislation Cited: Evidence Act 1995 Category: Principal judgment Parties: Mr Jamal Charara (Plaintiff)
Mr Harjit Singh Grewal & Mr Michael Wilden (Defendant)Representation: Counsel:
Ms K Dawson (Defendants)
Solicitors:
Mr Beazley (Plaintiff)
File Number(s): 2013/50199 Publication restriction: None
Judgment
By his amended summons filed on 26 February 2013, the plaintiff, Jamal Charara, sought these orders:
(1) Declaration that the defendants or the first defendant used the Commissioner of Taxation powers to target and intimidate the plaintiff.
(2) Declaration that the defendants or the first defendant abused the Commissioner of Taxation powers.
(3) Declaration that the defendants are guilty or the first defendant is guilty of the offence in paragraphs (1) or (2) or both.
(4) Declaration that the second defendant is guilty of an offence under division 355 of schedule 1 of the Taxation Administration Act 1953.
(5) Order that the defendants or the first defendant and any person under the employment of the Australian Taxation Office that report to and takes direction from the first defendant must not take any part in any taxation dealings between the Australian Taxation office and the plaintiff and any person and entity the plaintiff is associated with for the purposes of Taxation.
(6) Order that the first defendant be convicted and be sentenced to imprisonment for the term the Court thinks fit or conviction and some punitive thing that the Court thinks fit.
(7) Order that the second defendant be convicted and sentence to imprisonment for term that the Court thinks fit or as the Court thinks fit.
(8) Order for exemplary damages against the defendants or the first defendant in favour of the plaintiff.
(9) Costs.
The Registrar ordered the plaintiff to file a Statement of Claim. By his statement of claim filed on 14 March 2013 the plaintiff sought the following orders:
(1) Declaration that the defendants or the first defendant used the Commissioner of Taxation powers to target and intimidate the plaintiff.
(2) Declaration that the defendants or the first defendant abused the Commissioner of Taxation powers.
(3) Declaration that the defendants are guilty or the first defendant is guilty of the offence in paragraphs (1) or (2) or both.
(4) Declaration that the defendants are guilty of offences under the Taxation Administration Act 1953.
(5) Order that the defendants or the first defendant and any person under the employment of the Australian Taxation Office that report to and takes direction from the first defendant must not take any part in any taxation dealings between the Australian Taxation office and the plaintiff for the purposes of Taxation.
(6) Order that the defendants be convicted and be sentenced to imprisonment for the term the Court thinks fit or conviction and some punitive thing that the Court thinks fit.
(7) Exemplary damages.
(8) Costs.
Those two documents were in terms objectionable for their assertion of what were said to be criminal offences. The statement of claim comprises seventy prolix paragraphs, many of which do not comply with the Rules. They mix up assertions with evidence. They make assertions of law. If application had been made for the statement of claim to be struck out the document would probably not have survived.
The defendants are Harjit Singh Grewal and Michael Wilden, who are officers of the Australian Taxation Office. The substance of the claims against them is that they acted improperly, unprofessionally and maliciously towards the plaintiff, and harassed him. That is only the sketchiest description of the plaintiff's assertion generally. One particular assertion, however, is that the first defendant requested the plaintiff, who sometimes assisted people to make visa applications, to assist him to bring his mother from overseas to settle in Australia. The Plaintiff declined to help. That precipitated the conduct complained of. The statement of claim included these paragraphs:
5. At about and around May 2007, the first defendant "Harjit" attended the plaintiff's office and told the plaintiff that the Australian Immigration department did not allow his mother to migrate to Australia to live with him because his mother have some illness, and that he engaged the services of migration Agents but all his attempts were unsuccessful, Harjit said that he heard of the plaintiff when some people were taking about the plaintiff as to how good the plaintiff is in preparing immigration applications to the Australian Government.
6. Harjit then said that he works at the Australia Taxation Office as a superior officer and that he would do anything to bring his mother to Australia.
7. The plaintiff then told Harjit that his work was for free and that he would only do it for people who are from warring countries mainly the black Africans.
8. Harjit said that he had done all he could to have doctors in India attend to his mother medical condition but his mother keep getting worst so it will be better for him if she came to live with him, he said that he had manage to obtain a medical certificate from India to show that his mother have overcome the sickness, the plaintiff asked Harjit as to what was his mother's sickness, Harjit said that his mother have heart problem and she was also diagnosed with liver defects, the plaintiff then told Harjit that his position was a difficult one and under Australian Immigration Laws it would be difficult to bring people who have such an illness to live in Australia other than people of specific refugee's position under Australia's commitment as a signatory to the United Nation Convention Treaty.
9. Harjit then said to the plaintiff that he must attend to his mother application and that it was the Indians tradition for the male to look after their mother and father to their death or they will be embarrassed, and that if the plaintiff don't fix the application for his mother to come and live here in Australia with him, he will make sure that he destroy all the plaintiff's taxation affairs with the Tax Office and he will make things difficult for the plaintiff at the Tax Office.
10. The plaintiff then reiterated to Harjit that his situation was very difficult and impossible for the plaintiff to do.
11. Harjit then said to the plaintiff "you just wait" you will see" I will finish you off"/
The defendants have put on defences in which they deny the happening of events relied on by the plaintiff. The first defendant denies that the exchange pleaded in the statement of claim ever took place. The second defendant denies facts pleaded against him which are said to be connected with the event pleaded by the plaintiff in those paragraphs.
The defendants say that in pleading the first defendant's attendance on that occasion the plaintiff is unlikely to be mistaken. They suspect that he is lying.
The plaintiff has filed an affidavit of Rona Atef Hamieh, affirmed on 29 May 2013. Ms Hamieh, who used to be in a de facto relationship with the plaintiff, asserted in her affidavit that she maintained a computer record which included a notation about a visit to the plaintiff's office by a man called Harjit. She annexed what she said was a copy of the notation. It is as follows:
Contact Log
22/06/2007 To 19/05/2013
19/05/2013
6:37:09 PM
Date Time
Page 1
Recontact Notes
Harjit Singh Grewal lD#1-7392
22/06/2007 .00
22/06/2007 .00
1-7392
Personal
Harjit is the same man attended last month
re: mother visa to Austfrom India, JC
cannot help, H said he will destroy JC tax
affairs
attended to audit with Christopher
Total: .00
The defendants believed that the record had been concocted, so they instructed their solicitor write to the plaintiff requesting the production of the electronic file said to contain the notation. The letter was written and with it was sent a USB stick for the purpose. Correspondence followed, during which the defendants explained that they wished to check the authenticity of the note by inspecting the file of which it was part. The plaintiff refused the request.
The defendants applied to the Court for an order under s169 of the Evidence Act 1995. Relevantly, s169 is as follows:
1) If the party has, without reasonable cause, failed or refused to comply with a request, the court may, on application, make one or more of the following orders:
(a) an order directing the party to comply with the request;
(b) an order that the party produce a specified document or thing, or call as a witness a specified person, as mentioned in section 166;
...
Campbell J heard the application on 26 July 2013. Counsel appeared for the defendants. The plaintiff conducted his own case and put arguments why the order should not be made. His Honour made orders including these:
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 9th 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 not the report are to be shared with any third party.
His Honour adjourned the matter for a directions hearing before the Registrar on 12 August 2013. The plaintiff did not attend the directions hearing, but a person acting for him did and handed the registrar a letter dated 5 October 2013 (sic). Omitting formal parts, the letter said:
Due to some unexpected emergency circumstances, I left Australia on 5 August 2013 and will not be back until the end of September 2013.
I note that the matter is listed on 12 August 2013, in those circumstances I will not be in Court.
The parties have filed and served all their evidence and the matter is ready to proceed, I believe that two days in October or November 2013 will be appropriate for the hearing.
I also note that Justice Campbell made some interlocutory order on 26 July 2013 to be complied with by 10 August 2013, and I have not refuse to attend to the order, but the urgent circumstances did not permitted to do so before I departed, I propose that any application by the defendants in respect of the order made, should be listed before the trial Judge of the upcoming hearing.
The Registrar adjourned the matter to 2 October 2013 for a directions hearing and for the allocation of a hearing date.
On 13 August 2013 the solicitor for the defendants sent the plaintiff an email stating that the defendant opposed the course proposed in the letter and requiring him to comply with Campbell J's orders.
The matter came before Registrar again on 2 October 2013. The plaintiff had still not complied with Campbell J's order. The plaintiff did not attend. Again someone attended on his behalf and handed a further letter to the Registrar. The letter was dated 2 October 2013. Omitting formal parts it was as follows:
I am the plaintiff and I am representing myself in these proceedings.
I will not return to Australia until after January 20, 2013.
The parties have filed and served all their evidence in these proceedings and the matter is ready to proceed.
Please list the matter down for 2 days hearing any dates from February 2014.
I also note that Justice Campbell made some interlocutory order on 26 July 2013 to be complied with by 10 August 2013, and I have not refuse to attend to the order, I propose that any application by the defendants in respect of the order made, should be listed before the trial Judge of the upcoming hearing.
The registrar made these orders:
(1) Plaintiff to comply with Justice Campbell order 26 July 2013 by 25 October 2013.
(2) Should plaintiff not comply the matter is to be referred to the Duty Judge, for consideration of why the proceedings should not be dismissed.
(3) List on 8 November 2013 for Directions or referral to Duty Judge.
(4) Plaintiff to provide affidavit evidence as to why he has not complied with Order by 1 November 2013.
(5) Stood over 8 November 2013.
(6) Defendant advise plaintiff of Order made.
(7) Court to e-mail to plaintiff order made using e-mail address disclosed on letter dated 2 October 2013.
On 8 November the matter came before the Registrar. The plaintiff did not attend. A solicitor called Boorman appeared for the plaintiff. There was no compliance with the order of Campbell J and the Registrar referred the matter to me as Duty Judge in accordance with order 2 of 2 October 2013.
Ms Dawson of counsel appeared for the defendants. Mr Beazley, solicitor, appeared for the plaintiff. Ms Dawson submitted that the plaintiff's claim should be dismissed. Mr Beazley opposed the order and drew attention to subs(3) of s169 which is as follows:
(3) The court may, on application, direct that evidence in relation to which a request was made is not to be admitted in evidence if an order made by it under paragraph (1)(a) or (b) is not complied with.
Mr Beazley submitted that the appropriate way to deal with the matter would be simply to direct that the evidence be not admitted.
I do not think that justice would be done merely by excluding the evidence of the notation and the corresponding part of Ms Hamieh's evidence. The history of the matter raises a question about the honesty of Ms Hamieh, and that has implications for the remainder of her evidence. If permitted, as I understand the plaintiff's case, she would give evidence of other matters calculated to advance the plaintiff's claim. If her honesty were impugned over the evidence relating to the computer record, that might call into question the reliability of her evidence generally. The same may be said for the evidence of the plaintiff, since he would give evidence of the threats I have summarised and also of other matters critical of the defendants.
The plaintiff has made very serious allegations about the acts of the defendants in the conduct of their profession. He relies on the evidence I have described. The defendants are entitled to test its authenticity. The plaintiff was present at the hearing before Campbell J and resisted the making of the orders sought by the defendants. Since then he has failed to comply with the order designed to enable the defendants to test the authenticity of the evidence. He has provided no excuse for his failure to comply. His absence overseas is no excuse. All he has done is attempt to defer consideration of the matter. I do not think that he has any intention of permitting the defendants to make proper enquiry.
If things were dealt with on the limited basis proposed by Mr Beazley, the defendants would be left unsure exactly what case they were facing and would be unable to prepare properly for trial. The conduct of the plaintiff throughout these proceedings gives me no reason to think that things will get any better. I think that the proceedings ought to be brought to an end and the plaintiff's claim dismissed. I make the following orders.
(1) The plaintiff's claim is dismissed.
(2) The plaintiff is to pay the defendants' costs of the proceedings.
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Decision last updated: 21 November 2013
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