Elmaraazey v Capital Lawyers Pty Ltd
[2016] ACTSC 54
•17 March 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Elmaraazey v Capital Lawyers Pty Ltd |
Citation: | [2016] ACTSC 54 |
Hearing Date: | 15 March 2016 |
DecisionDate: | 17 March 2016 |
Before: | Mossop AsJ |
Decision: | The application for leave to appeal dated 10 February 2016 is dismissed. |
Catchwords: | APPEAL – application for leave to appeal from decision of Magistrates Court – decision setting aside subpoenas issued at the request of the applicant – whether solicitor perverted course of justice – whether denial of procedural fairness or natural justice – whether reasons for setting aside were adequate – application dismissed APPEAL – application for extension of time in which to appeal from decision of Magistrates Court – power under the Court Procedure Rules 2006 (ACT) r 5103 to grant an extension of time to appeal pursuant to the Magistrates Court Act 1930 (ACT) s 274 – where there is an adequate explanation for delay PRACTICE AND PROCEDURE – Subpoenas – Application to set aside a subpoena in part – whether documents sought to be produced are relevant – principles to be applied – legitimate forensic purpose |
Legislation Cited: | Magistrates Court Act 1930 (ACT), s 274 Court Procedures Rules 2006 (ACT), r 5103 Evidence Act 2011(ACT), s 36 |
Cases Cited: | Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574 Director of Public Prosecutions v Martin (2014) 9 ACTLR 1 Waind v Hill [1978] 1 NSWLR 372 |
Parties: | Mamdouh Elmaraazey (Applicant) Capital Lawyers (Respondent) |
Representation: | Counsel |
| Solicitors Self-represented (Applicant) Capital Lawyers (Respondent) | |
File Number: | SCA 11 of 2016 |
Mossop AsJ:
The application
The applicant, Mamdouh Elmaraazey, has sought leave to appeal against the order of the ACT Magistrates Court given on 27 January 2016. The application is supported by the affidavit of Mr Elmaraazey sworn 10 February 2016.
The order appealed from is an order setting aside two subpoenas issued at the request of the applicant, being subpoenas addressed to the Public Advocate and to Capital Lawyers Pty Ltd.
The proceedings in the Magistrates Court
The proceedings in which the order of the Magistrates Court was made were proceedings by which the respondent, Capital Lawyers Pty Ltd, sought to recover from Mr Elmaraazey money alleged to be owed under agreement for the provision of legal services.
At the time of the applications before the Magistrate, the relevant pleadings were an Amended Statement of Claim dated 11 December 2015 (Claim) and a Defence dated 9 October 2015 (Defence). The reason that the Defence predates the Claim is that when the Claim was filed the defendant did not consider that any amendments to the Defence were necessary.
The Claim identifies the plaintiff’s claim as being for a debt in the sum of $198,653.08. Interest and costs are also claimed. The Claim pleads a costs agreement between the plaintiff and the defendant dated 19 July 2010. It pleads that the plaintiff issued a costs disclosure statement and various invoices and fee notes from senior and junior counsel. It pleads the issuing to the defendant of reminders in relation to his debt and the acknowledgement of his debt on at least two occasions.
The Defence does not admit that the defendant is indebted to the plaintiff as alleged or at all. The Defence contains denials or non-admissions in relation to each aspect of the claim. In relation to the content of the agreement, the Defence admits that there was an agreement but, not an agreement as alleged in the Statement of Claim. Paragraphs [13] and [14] of the Defence are as follows:
13.The plaintiff is estopped from alleging that the defendant is indebted to the plaintiff as alleged or at all.
14.The defendant is unable to file a full defence as the plaintiff’s statement of claim is vague and will plead further upon the completion of full investigations through the Court and/or otherwise.
The affidavit in support of the application
The affidavit of Mr Elmaraazey discloses the following matters.
In June 2015, the respondent commenced proceedings in the Magistrates Court against the applicant alleging a debt. In October 2015, the applicant filed his defence.
The applicant then served a notice for discovery. The letter containing that request, which is dated 28 October 2015, identifies categories of documents of which discovery was sought. It is not clear whether those categories were intended to limit the scope of discovery. There is no evidence of any agreement that discovery was to be so limited.
On 7 December 2015, the applicant received the respondent’s unsealed affidavit of discovered documents.
The applicant then wrote to the respondent on 7 December 2015 contending that the respondent had not fully complied with the requests set out in his letter dated 28 October 2015. However, he did not in that letter identify the manner in which he said the respondent had failed to comply with his request.
On 11 December 2015, the respondent filed the Amended Statement of Claim. On the same day the respondent filed and served its list of discovered documents.
On 5 January 2016, the applicant filed and served a subpoena on the Public Advocate of the Australian Capital Territory. The schedule to the subpoena set out in the affidavit identified the documents that were required to be produced as:
1.All documents, however compiled or stored, referable to, referring to or relating to any contact or communication between the Public Advocate of the ACT and:
1.1 Laila Gindy;
1.2 Capital Lawyers;
1.3 Capital Lawyers Pty Ltd (ACN 083719199);
1.4 Paul Crabbe of Capital Lawyers Pty Ltd (ACN 083719199);
1.5 All persons or any person of Capital Lawyers or Capital Lawyers Pty Ltd (ACN 083719199); and
1.6 Comcare.
2.Without limiting the above, all correspondences, however compiled or stored, including but not limited to, emails, letters, memos, written records of telephone conversations and text messages between the Public Advocate of the ACT and:
2.1 Laila Gindy;
2.2 Capital Lawyers;
2.3 Capital Lawyers Pty Ltd (ACN 083719199);
2.4 Paul Crabbe of Capital Lawyers Lawyers Pty Ltd (ACN 083719199);
2.5 All persons or any person of Capital Lawyers or Capital Lawyers Pty Ltd (ACN 083719199); and
2.6 Comcare.
On 7 January 2016, a letter providing an additional list of documents by way of continuing discovery was provided to the applicant.
On 12 January 2016, the respondent filed an application seeking to have the subpoena set aside.
On 19 January 2016, the Registrar of the Magistrates Court made orders in relation to the inspection of discovered documents.
On 20 January 2016, the application to set aside the subpoena was returned before a Magistrate. The Public Advocate appeared by a solicitor on that occasion. The solicitor said:
We would be supporting that application. If it fails, we’ll be appearing at the return of subpoena next week and then will be arguing for privilege and similar sorts of applications.
At the applicant’s request the application was adjourned until 27 January 2016.
On 21 January 2016, the applicant filed and served another subpoena, this time directed to the respondent. The schedule to the subpoena was as follows:
FOR THE PERIOD: Tuesday 05 January 2016 to Thursday 21 January 2016 inclusive.
The documents and things you must produce are as follows:
1.All documents, however compiled or stored, referenced to, referring to or relating to any contact or communication between the Plaintiff and:
1.1 ACT Public Advocate; and
1.2 ACT Government Solicitor.
2.Without limiting the above, all correspondences, however compiled or stored, including but not limited to, emails, letters, memos written records of telephone conversations and text messages between the plaintiff and:
2.1 ACT Public Advocate; and
2.2 ACT Government Solicitor.
3.All documents, however compiled or stored, referable to, referring to or relating to any contact or communication between Paul W Crabbe and:
3.1 ACT Public Advocate; and
3.2 ACT Government Solicitor.
4.Without limiting the above, all correspondences, however compiled or stored, including but not limited to, emails, letters, memos, written records of telephone conversations and text messages between Paul W Crabbe:
4.1 ACT Public Advocate; and
4.2 ACT Government Solicitor.
On 21 January 2016, the respondent filed another application to set aside this subpoena which was made returnable on 27 January 2016.
The two applications were heard by the Magistrate on 27 January 2016. During the course of the applications, three exhibits were tendered. The applicant also provided written submissions to the Court.
The applicant draws attention to a passage in the transcript immediately prior to his Honour adjourning to consider his decision, in which his Honour sought a response from Mr Crabbe, who appeared for the respondent, in relation to the written submissions of the applicant which had just been provided. At page 25 of the transcript the following appears:
HIS HONOUR: [...] Is there anything-you’ve now seen this written submission from Mr Elmaraazey.
MR CRABB: Yes. I am perverting the course of justice, so---
HIS HONOUR: Is there anything further you wish to say---
MR CRABB: No.
HIS HONOUR: --- by way of submissions based on that?
MR CRABB: No.
His Honour reserved his decision for half an hour and gave it orally. His reasons were as follows:
I have heard two applications to set aside subpoenas. Subpoenas were issued by the defendant. One is addressed to the Public Advocate; the other is addressed to the plaintiff. The material sought under the two subpoenas are similar, relating to documents evidencing communications between the plaintiff and/or the Public Advocate and/or the ACT Government Solicitor. In relation to the subpoena addressed to the Public Advocate, the schedule introduces references to a Ms Gindy, [...], and to Comcare.
I permitted the parties, by way of background, to explain to me who Ms Gindy is and her involvement generally. As I understood the exchanges, there is no agreement on the background, but it is accepted that Ms Gindy is the wife of the defendant and that some moneys came into and out of the plaintiff’s trust account in connection with a claim of hers. The plaintiff’s objection to the subpoena is expressed to be based on relevance. There is significant overlap between an objection based on relevance and one based on abuse of process because of the absence of legitimate forensic purpose.
The plaintiff’s claim against the defendant is one for professional allegedly costs owing under a solicitor-client costs agreement for work done by the plaintiff for the defendant in certain proceedings before the ACAT. I permitted the defendant to put into evidence material which indicates the following: first, the existence of a letter on the plaintiff’s file for the defendant’s ACAT proceedings which apparently relates to some work done by the plaintiff for proceedings, which apparently relates to some work done by the plaintiff for Ms Gindy and, secondly, some entries in the trust account records of the plaintiff which appear to relate to payments to or from Ms Gindy.
I note in relation to the entry identified as J12 on exhibit C that it refers to the receipt of an amount of 29-odd thousand dollars and it includes the notation “as per client’s written instructions dated 25 October 2015.” Mr Elmaraazey was unable to enunciate in any precise way what he said was the legitimate forensic purpose or the relevance of the material under subpoena. His written submissions do not assist. To the extent that there is a reference in exhibits A, B and C to Ms Gindy, the material does not suggest that any professional charge was made to the defendant for work performed for his wife. There is no pleading or submission to that effect either.
In the circumstances, I conclude that the documents sought under subpoena, are not reasonably likely to add to the evidence in the case. Accordingly, I order that both of the subpoenas be set aside.
Proposed grounds of appeal.
The proposed grounds of appeal set out in a Draft Notice of Appeal are as follows:
1. There was a miscarriage of justice when the Magistrate gave inadequate reasons for his decision.
2. There was a miscarriage of justice when the Magistrate did set aside the subpoenas even after Mr. Paul Crabb offered no challenge for the applicant submissions that Mr. Paul Crabb is perverting the course of justice.
3. The Magistrate failed to afford the appellant procedural fairness in respect of:
3.1 refusing to allow the appellant to cross examine Mr. Paul Crabb. [sic] the respondent.
3.2 refusing to require Mr. Paul Crabb to explain some of the relevant issues.
3.3 substituting or adding, for the respondent or on behalf of the respondent, grounds for his application.
3.4 reversing the onus of proof.
3.5 disregarding the appellant written submissions.
3.6 deciding against the appellant when there was no proper submissions from the respondent on the relevant law.
3.7 deciding against the appellant when there was no submissions in reply from the respondent.
3.8 accepting the support, of the subpoenaed non-party to the respondent, from the bar table.
3.9 accepting from the subpoenaed non-party having another go at the appellant, with similar applications, if the respondent’s application fails in his application.
3.10 setting aside the subpoenas even after Mr. Paul Crabb offered no challenge for the applicant submissions that Mr. Paul Crabb is perverting the course of justice.
4. The Magistrate failed to afford the appellant Natural Justice. The appellant repeats ground 3.1 to 3.10 above.
5. The Magistrate failed to apply, or incorrectly applies the principles which govern the subject matter of the subpoenas.
6. The Magistrate failed to take into account that Mr. Paul Crabb offered no challenge for the applicant submissions that Mr. Paul Crabb is perverting the course of justice.
...
7. Whether it was proper for the Magistrate to allow from the bar table a non-party – the subpoenaed party, the support for the respondent against the appellant.
8. Whether it is proper, for a Magistrate in other cases similar to this case, to allow from the bar table a non-party – the subpoenaed party, the support for one party against the other?
9. Whether it was in the public interest for the Magistrate to allow form the bar table a non-party – the subpoenaed party, the support for the respondent against the appellant.
10. Whether it is in the public interest, for a Magistrate in other cases similar to this case, to allow form the bar table, a non-party – the subpoenaed party, the support for on party against the other?
11. Whether it was proper for the Magistrate to allow, from the bar table or otherwise, that non-party – the subpoenaed party, to have another go at the appellant with similar applications, if the respondent fails in his application?
12. Whether it is proper, for a Magistrate in other cases similar to this case, to allow, from the bar table or otherwise, that a non-party – the subpoenaed party to have another go at one party, with similar applications, if the other party fails in his application?
13. Whether it was in the public interest, for the Magistrate to allow a non-party – the subpoenaed party, from the bar table, to have another go at the appellant, with similar applications, if the respondent fails in his application?
14. Whether it is in the public interest, for a Magistrate in other cases similar to this case, to allow form the bar table or otherwise, a non-party – the subpoenaed to have another go at one party, with similar application, if the other party fails in his application?
15. Whether it was proper for the Magistrate to set-aside the subpoenas after Mr. Paul Crabb offered no challenge for the applicant submissions that Mr. Paul Crabb is perverting the course of justice.
16. Whether it is in the interest of justice and the public, the Supreme Court should make the appropriate directions or guidelines, procedurally and/or substantiively [sic], as how in the future a Court should or could conduct applications similar to the one that was before the ACT Magistrates Court on 20 January 2016 and 27 January 2016 and are subject to this appeal?
Jurisdiction.
Section 274 of the Magistrates Court Act 1930 (ACT) provides.
274 Cases in which appeal may be brought
(1) An appeal may be brought only with the leave of the Supreme Court.
(2) However, an appeal may be brought as of right from a judgment or order—
(a) for, or for the payment of, an amount of $2 000 or more; or
(b) in a proceeding in the Magistrates Court—
(i) in which the matter in issue amounts to, or is of the value of, $2 000 or more; or
(ii) that involves directly or indirectly a claim, demand or question to or in relation to any property or any civil right amounting to, or of the value of, $2 000 or more.
Given that the claim was for the principal amount of $198,653.08, the case falls within s 274(2)(b)(i). Given that the section does not discriminate between final and interlocutory decisions, the applicant was entitled to appeal as of right.
However, given that he sought leave to appeal as opposed to filing a notice of appeal, he has now permitted the time set out in r 5103 of the Court Procedures Rules 2006 (ACT) (CPR) to expire and would need leave so as to permit him to file an appeal out of time. In those circumstances, I have treated his application for leave to appeal as an application for leave to appeal out of time. I note that this was a course which, if based on the terms of r 5103, would be inconsistent with my analysis of that rule in Hussain v Ngep [2015] ACTSC 71 (Hussain). To the extent that it is, I have treated the application as an application to dispense with the CPR to the extent necessary to permit the filing of an appeal in the same way that I dealt with the matter in Hussain: see Hussain at [33].
In order to warrant an extension of time the Court must be satisfied that it is appropriate to give such an extension. That will generally require the applicant to provide an explanation for his delay in filing the Notice of Appeal, a demonstration of an arguable claim for relief on the appeal and a consideration of whether in all the circumstances it is appropriate to grant leave to appeal. A summary of the principles is provided in the decision in Director of Public Prosecutions v Martin (2014) 9 ACTLR 1 to which I made reference in Hussain at [34]. In the present case, a further consideration is that the decision under appeal is an interlocutory one rather than a final one. While the decision does not finally determine any rights of the parties, regard must be had to the extent to which it might occasion an injustice to the applicant if it was wrong.
Explanation for delay
I am satisfied that there is an explanation for the delay in filing a Notice of Appeal. That is because the applicant thought that it was necessary to obtain leave to appeal from a decision such as this one of the Magistrates Court.
Proposed grounds of appeal
I set out below my assessment of each of the proposed grounds of appeal that would be agitated if leave to appeal was granted. I have undertaken that assessment by reference to the fact that an appeal would be by way of rehearing but, because it was a matter involving a discretionary decision, the principles in House v R (1936) 55 CLR 499 would apply.
Ground 1: Inadequate reasons
On an interlocutory application such as this it is not necessary for the Court to give extensive reasons. The reasons given by his Honour addressed the critical contest between the parties namely whether or not there was a legitimate forensic purpose for the subpoenas. His Honour’s reason for concluding that there was not such a purpose was articulated, namely, “Mr Elmaraazey was unable to enunciate in any precise way what he said was the legitimate forensic purpose or the relevance of the material under subpoena”. The reasons therefore satisfied the requirements for adequate reasons identified in the authorities summarised in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58].
Grounds 2, 3.10 and 6: Perverting the course of justice
The transcript extracted above indicates to a reasonable reader that Mr Crabbe was not agreeing with the submission that he had perverted the course of justice but rather was:
(a)noting that that was a new issue raised in the written submissions of the applicant which had just been provided to him;
(b)recording that it was not a matter on which he wished to make any further submissions.
It was not necessary for his Honour to deal in his reasons with the issue of perversion of the course of justice. It is clear that the suggestion that Mr Crabbe had perverted the course of justice was so far-fetched that it was unnecessary for Mr Crabbe to address any submissions to that question and it was not necessary for his Honour to specifically address that issue in his reasons.
Grounds 3 and 4: Denial of procedural fairness/natural justice
I am not satisfied that there was any failure to accord procedural fairness on the application. I will deal with the identified basis for the applicant’s contentions in the Draft Notice of Appeal below.
Grounds 3.1, 3.2 - Cross examination of Mr Crabbe: In so far as this relates to the refusal to require that Mr Crabbe make himself available for cross examination, Mr Crabbe had not made any affidavit and there was therefore no entitlement on the part of the applicant to cross-examine him. In oral submissions on the present application, the applicant made reference to s 36 of the Evidence Act 2011(ACT) which permits a person to be called to give evidence without a subpoena or other process. That was not a provision relied upon by the applicant before his Honour and his Honour was not called on to make an order under that section. His Honour did not deny the plaintiff procedural fairness by failing to consider making an order under the section in circumstances where such an order would have been unusual and his Honour was not called upon to make such an order by the applicant.
Ground 3.3 - Substituting or adding grounds for the application: It is not clear what is meant by this ground. If it is intended to encapsulate the proposition that his Honour formulated the relevant question as whether or not the applicant had demonstrated a “legitimate forensic purpose” for the subpoena then that, in my view, does not involve the Court substituting the grounds for the respondent’s application. The grounds in the application were clearly articulated as follows:
1. The defendant’s subpoena has:
a. not been issued for a bona fide purpose of obtaining relevant evidence;
b. has been issued for:
i. the purpose of obtaining discovery against a third party and
ii. an impermissible purpose, i.e. “fishing”.
The questions of law to be raised are as follows:
2. Are the documents sought on the defendant subpoena:
a. reasonably likely to add to the relevant evidence to the matter before the court; and
b. apparently relevant, in the sense that they could “possibly throw light on the issues in the main case”; or
per Mossop M (as he was) DPP v Warren [2015] ACTSC 111 (20 February 2015), at paragraphs 22 and 23.[sic]
Having regard to these grounds, the use of the term “legitimate forensic purpose” was an appropriate summary of what the respondent contended was absent. It did not involve any denial of procedural fairness to the applicant.
Ground 3.4 - Reversing the onus of proof: Although not particularised in the applicant’s submissions this may be a reference to the following exchange that appears in the transcript (page 13):
HIS HONOUR: But, you see, you accept, Mr Elmaraazey, that it is no answer to a question, what’s your legitimate forensic purpose to answer by saying “I don’t know until I’ve seen the documents.”
MR ELMARAAZEY: No. I’m sorry, I haven’t said that at all. It is the onus of proof on the one with the application. You can’t, with respect, reverse the onus of proof. That’s an error of law.
In my view His Honour did not impermissibly reverse the onus of proof. The applicant is correct in contending that the onus of proof in relation to a fact in issue for the purposes of the application would be upon the applicant. The applicant also bore an ultimate onus to persuade the Court to make the order that he sought. However, on the present application the relevant facts were largely the terms of the pleadings which identified the scope of the issues in dispute in the case and the terms of the subpoenas themselves. That was sufficient to expose a gap between the issues arising from the pleadings and the documents sought under subpoena which needed to be explained if the subpoenas were not to be set aside. Necessarily, in those circumstances, it was for the party at whose request the subpoenas were issued to articulate how the documents sought under the subpoena related to the issues in the case, that is, what the legitimate forensic purpose for the issuing of the subpoenas was. To adopt this approach was not to impermissibly reverse an onus of proof.
Ground 3.5 - Disregarding the applicant’s written submissions: The written submissions that were before his Honour were admitted into evidence before me as exhibits 2 and 3. The written submissions in Exhibit 2 contended that the application was incompetent and submitted that the schedule of correspondence in support of the application was insufficient. It therefore contended that the application should be dismissed. Next the submissions contained an argumentative and unhelpful analysis of the grounds for the application. Next the submissions contended that the respondent did not have sufficient interest to bring the application. Finally, the submissions set out extracts from a large number of authorities relating to subpoenas and applications to set them aside.
The written submissions, which became Exhibit 3, alleged that the respondent interfered with a material witness, the Public Advocate, in order to obtain its support which was articulated on 21 January 2016. These submissions sought an adjournment so as to have the transcript of 8 December 2015 and 20 January 2016 (which probably should have been a reference to 21 January 2016) available and in evidence. The submissions made the allegation that the respondent had perverted the course of justice and set out an extract from R v OM [2011] NSWCCA 109 which in turn referred to R v Rogerson (1992) 174 CLR 268. His Honour did not ignore these submissions. Rather, on the central issue, namely whether or not the applicant could articulate what he said was the legitimate forensic purpose or relevance of the material under the subpoena, his Honour concluded “His written submissions do not assist”. In my view that conclusion was an accurate one. The applicant clearly had the opportunity to make submissions for the purposes of the application. That is what procedural fairness required. The fact that he made submissions which failed to address in any understandable manner the central issue on the application does not indicate that he was denied procedural fairness.
I note that the application for an adjournment identified in the written submissions was not articulated orally at the hearing. The applicant identified at the hearing that he had no objection to having both applications dealt with that afternoon (Transcript p 3).
Grounds 3.6, 3.7 - Deciding against the applicant without submissions from the respondent: His Honour heard submissions in chief from Mr Crabbe. At the conclusion of Mr Elmaraazey’s submissions Mr Crabbe was given an opportunity to make any additional submissions in reply and it is at that point that he referred, in the manner which is quoted above, to the applicant’s submission about perverting the course of justice. His Honour was not obliged to hear additional submissions from the respondent.
Ground 5: Incorrect principles in relation to subpoenas
I summarised the effect of the authorities in relation to setting aside a subpoena on the grounds of a lack of relevance in DPP v Warren [2015] ACTSC 111 at [22] as follows:
[22] The test for relevance of a subpoena is that production of the relevant documents would be reasonably likely to add to the relevant evidence in the case and that the material has “apparent” relevance in the sense that it could “possibly throw light on the issues in the main case” or that it was on the cards that it would do so: Spencer Motors Pty Ltd v LNC Industries Ltd[1982] 2 NSWLR 921 at 926–927; Portal Software v Bodsworth [2005] NSWSC 1115 at [23]ff; Re North Coast Transit Pty Limited [2013] NSWSC 1912 at [7]–[9].
In the present case, his Honour dealt with this issue in his reasons by saying:
In the circumstances, I conclude that the documents sought under subpoena are not reasonably likely to add to the evidence in the case.
This formulation appears to have been derived from the decision of the Waddell J in Spencer Motors Pty Ltd V LNC Industries Ltd [1982] 2 NSWLR 921 (Spencer Motors). In that case his Honour was addressing what was meant by Jordan CJ in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574, where his Honour referred to documents being “not sufficiently relevant”. Waddell J (at 927) said of the decision of Moffitt P in Waind v Hill [1978] 1 NSWLR 372:
His views may, perhaps, be summarised by saying that inspection should be granted so far as is necessary in the proper conduct of the litigation and this means where it is reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case. In my opinion this is the test which should be applied to the question whether the present subpoenas are oppressive or an abuse of process in the sense submitted.
In my view this test is consistent with the test that I have outlined above, authorities such as Portal Software and Re North Coast Transit clearly being a working out of the decision in Spencer Motors. His Honour therefore applied to the correct test.
So far as the application of the test was concerned the submissions before the Magistrate involved submissions directed to particular entries in the trust account ledger of the respondent relating to the applicant’s case and particular items in the list of discovered documents. It was very difficult to work out what the submission being made by the applicant was. He appeared to be submitting that because of the reference in those items to his wife, Laila Gindy, then the items sought in the schedules to the subpoenas were relevant. The reason why that might be so was not apparent to his Honour and is not apparent to me. It is very clear that his Honour invited on at least eight occasions Mr Elmaraazey to provide an explanation of the relevance of those documents but, he did not do so in a manner that allowed the Magistrate to perceive that relevance, and neither a reading of the transcript nor the written and oral submissions on the present application have allowed me to perceive that relevance. In oral submissions before me the applicant asserted that Mr Crabbe had acted fraudulently in relation to either his own case or in relation to his wife although the content of that very serious allegation remained unclear. It is certainly not something which arises on the pleadings in the Magistrates Court proceedings.
Grounds 3.8, 3.9 and 7-14: proposed conduct of Public Advocate
These grounds are repetitive and similar. They each involve a complaint about the apparent support given by the subpoenaed party (the Public Advocate) to the respondent’s attempts to have the subpoena set aside. That support was expressed when the matter was before his Honour on 21 January 2016. There was no appearance for the Public Advocate on 27 January 2016 when the application was heard. Because his Honour set aside the subpoena it was not necessary for him to consider, and he did not consider, whether, if he had not set aside the subpoena, the recipient of the subpoena was somehow precluded from making a separate application to have the subpoena to it set aside. Further, the possibility that the Public Advocate might choose to bring an application to set aside the subpoena to it was not a matter which influenced the outcome of the application brought by the respondent. Thus the grounds of appeal appear to be either based upon a hypothetical situation which did not arise or relate to an issue which had no apparent influence upon his Honour’s deliberations.
Ground 16: Guidelines or directions for future applications
This is not a proper ground of appeal.
Conclusion
In the light of the above I am not satisfied that the proposed grounds of appeal disclosed in the draft notice of appeal are reasonably arguable. Further, because the applicant has failed to articulate what legitimate forensic purpose the subpoenas had he has not demonstrated that he will suffer any injustice by reason of the refusal of leave assuming the decision below to have been wrong. In those circumstances I am not satisfied that the provisions of the Court Procedures Rules should be dispensed with to the extent necessary to permit the applicant to file a notice of appeal out of time.
Costs.
My tentative view is costs of the application should follow the event. However, I will permit either party to be heard on this issue if necessary.
Orders.
The order of the Court is:
1. The application for leave to appeal dated 10 February 2016 is dismissed.
| I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Desiree Thistlewaite Date: 1 April 2016 |
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