Dahdah v Platinum Distributors Australia Pty Ltd

[2020] FCA 1608

FEDERAL COURT OF AUSTRALIA

Dahdah v Platinum Distributors Australia Pty Ltd [2020] FCA 1608

File number(s):

NSD 61 of 2019

Judgment of:

BURLEY J

Date of judgment:

4 November 2020

Catchwords:

PRACTICE AND PROCEDURE – application to set aside a subpoena – where subpoena is too broad and relates to documents not relevant to issues in proceedings – subpoena set aside 

Legislation:

Competition and Consumer Act 2010 (Cth) Schedule 2 (‘Australian Consumer Law’)

Fair Work Act 2009 (Cth)

Division:

Fair Work Division

Registry:

New South Wales

National Practice Area:

Employment and Industrial Relations

Number of paragraphs:

8

Date of last submissions:

29 October 2020

Counsel for the Applicant:

Ms U. Okereke-Fisher

Solicitor for the Applicant:

Revelman Legal

Counsel for the First Respondent:

The First Respondent did not appear

Counsel for the Second Respondent:

Mr M. Seck

Solicitor for the Second Respondent:

Solve Legal Pty Ltd

ORDERS

NSD 61 of 2019

BETWEEN:

JEAN DAHDAH

Applicant

AND:

PLATINUM DISTRIBUTORS AUSTRALIA PTY LTD

First Respondent

JAMES DAHDAH

Second Respondent

ORDER MADE BY:	BURLEY J
DATE OF ORDER:	4 NOVEMBER 2020

THE COURT ORDERS THAT:

1. The subpoena served by the applicant on the second respondent on 9 October 2020 be set aside.

2. The costs of the interlocutory application dated 15 October 2020 be reserved.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BURLEY J:

1. In these proceedings the applicant, Jean Dahdah, seeks relief pursuant to the Fair Work Act 2009 (Cth) for the failure of Platinum Distributors Australia Pty Ltd to pay him, or for making underpayments of wages and entitlements, in the amount of $286,957.50, that pecuniary penalties be imposed pursuant to the Fair Work Act, damages for breach of contract and damages for contravention of the provisions of the Australian Consumer Law. Relief is sought against the second respondent, James Dahdah, who is the applicant’s cousin and was Platinum’s sole director and shareholder.

2. The trial commenced on 28 September 2020, and was adjourned part-heard, with the hearing to resume on 20 November 2020. In the meantime, the applicant has served a subpoena on the second respondent, the schedule to which is in the following terms:

   The documents and things you must produce are as follows:

   1.A copy of this subpoena.

   2.All bank records held by or in the name of James Dahdah during the period from July 2011 to January 2015, in your possession, custody or control.

   3.All bank records held by or in the name of Platinum Distributors Australia during the period from June 2011 to January 2015 and from 1 January 2018 to June 2019 in your possession, custody or control.

   4.All financial records, including financial statements and income tax returns prepared for or in the name of Platinum Distributors Australia during the period from June 2011 to June 2019 in your possession, custody or control.

3. The second respondent has filed an interlocutory application seeking to set aside the subpoena. I made directions for the parties to file and serve brief written submissions and have indicated that I would deal with the application on the papers.

4. In short, the second respondent first contends that the subpoena is unduly burdensome and oppressive to him. He has filed no evidence in support of this contention, and I reject it. He next contends that both his and Platinum’s bank and other financial records are irrelevant to the issues in the proceedings, including because the time periods over which the records being sought are unduly broad. He further contends that it is not the place of the Court to re-draft the subpoena and that the only course is for it to be set aside.

5. The applicant contends that the documents sought are relevant to a number of issues, including (i) whether the offer to pay the applicant a salary of $96,400 per annum was a sham; (ii) whether Platinum or the second respondent were financially viable and able to offer such a salary; (iii) whether the second respondent made false representations to the Department of Home Affairs in relation to the financial viability of Platinum; (iv) whether the second respondent’s father had paid money to the second respondent for work performed by the applicant and (v) whether Platinum or the second respondent had filed the applicant’s tax returns and received money from the ATO owed to the applicant without his consent.

6. It is not apparent to me how issues (i) and (iii) arise from the case pleaded by the applicant. However, central to the factual dispute between the parties is the question of what money was paid by Platinum or the second respondent to the applicant during the period from when the second respondent was arranging for the applicant to obtain a visa to move from Lebanon to Australia, during the course of 2013, until the time when the applicant contends that his employment with Platinum ceased, in October 2017.

7. In my view the subpoena as drafted is too broad, but in a more narrow form it would address relevant facts in issue and have a legitimate forensic purpose. In the absence of evidence going to oppression, I reject that as a basis for setting aside the subpoena. I am, however, disposed to grant leave to the applicant to serve a Notice to Produce on the second respondent, returnable before the Registrar prior to the resumed hearing date, in terms whereby the period in paragraphs 2 and 3 is limited to the period from January 2013 until January 2015, and the period in paragraph 4 is limited to January 2013 until October 2017.  

8. In these circumstances the orders that I now make are:

   (1)The subpoena served by the applicant on the second respondent on 9 October 2020 be set aside.

   (2)The costs of the interlocutory application dated 15 October 2020 be reserved.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley.

Associate:

Dated:       4 November 2020