Foundas v Arambatzis

[2023] NSWSC 1225

Supreme Court

New South Wales

Medium Neutral Citation:

Foundas v Arambatzis [2023] NSWSC 1225

Hearing dates:

On the papers

Date of orders:

13 October 2023

Decision date:

13 October 2023

Jurisdiction:

Equity - Real Property List

Before:

Rees J

Decision:

Leave to issue subpoena

Catchwords:

SUBPOENA – litigant in person – leave to issue subpoenas – r7.3, UCPR.

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 7.3

Cases Cited:

Hamzy v Commissioner of Corrective Services (No 1) [2017] NSW 183

Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

Category:

Procedural rulings

Parties:

Cassiani Foundas (Plaintiff)
Peter Arambatzis (First Defendant)
Sean Wengel (Second Defendant)
Robert Whitton (Third Defendant)

Representation:

Counsel:
Mr D Barlin / Ms T Harris-Roxas (First Defendant)

Solicitors:
Cassiani Foundas (Plaintiff) (In person)
Cutri & Associates (First Defendant)
William Robert Lawyers (Second and Third Defendants)

File Number(s):

2021/297960

JUDGMENT

1. HER HONOUR: The plaintiff, Cassiani Foundas, seeks leave to issue subpoena. Ms Foundas is unrepresented and, as such, requires the leave of the Court to do so: Uniform Civil Procedure Rules 2005 (NSW), rule 7.3.

2. The principles concerning a grant of leave were explained by Bellew J in Hamzy v Commissioner of Corrective Services (No 1) [2017] NSW 183 at [5]-[6]: (citations omitted)

Put simply, leave should not be given unless there is a good reason to do so. Some proper purpose for the issue of the subpoena must be established, bearing in mind that subpoenas are important steps in the litigious process. In considering a grant of leave, I must have regard to the various grounds on which a subpoena may be set aside. Those grounds include that a subpoena is oppressive, irrelevant, an abuse of process of the Court, or amounts to a fishing expedition.

An overriding consideration in determining whether leave should be granted is that the party who seeks leave bears the onus of demonstrating that the subpoena has a legitimate forensic purpose. Whether such a purpose is demonstrated is a determination which must be made having regard to the issues in the proceedings.

3. It will generally be sufficient and prima facie evidence of a legitimate forensic purpose if the documents sought to be produced on subpoena have an apparent relevance to the issues in the case or bear upon the cross examination of witnesses expected to be called in the proceedings: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [80] (per Bell P, as the Chief Justice then was).

4. The plaintiff seeks leave to issue subpoena to forensic document examiner, Melanie Holt, and to the first defendant, Peter Arambatzis. Whilst both proposed subpoena are in the form of a subpoena to attend to give evidence and to produce documents, I understand that it is documents which the plaintiff seeks.

5. In considering the application for leave, I have been assisted by the plaintiff’s written submissions and those of the first defendant’s counsel. The main objection to the scope of the subpoena is that the documents sought are said to be irrelevant to an issue in the proceedings. As such, I have also reviewed the pleadings. A key issue in these proceedings is whether a Deed of Acknowledgement dated 3 December 2013 is genuine or a forgery. The plaintiff contends that the deed is genuine and has the consequence that the first defendant thereby acknowledged that he had no interest in two properties, while the first defendant says the document is a forgery.

Subpoena to document examiner

6. The first defendant retained Ms Holt. An affidavit by Ms Holt was filed on 2 February 2023, attaching her report. The schedule to the proposed subpoena to Ms Holt seeks the following material:

1.   All documents of evidence detailed in your Forensic report dated 21st January 2023 that was used to come to the conclusion you have.

2.   Documentary proof and TAX INVOICE with account evidence that you supplied and has been paid by your client with name and address on official TAX INVOICE for such a forensic report by Melanie Holt of DiD P/L dated 21st January 2023.

3.   Documentary evidence that an original was used, supplied by the plaintiff and not just a copy

4.   Documentary evidence of an original cross reference document used in the acknowledgement of your findings. Not a copy.

7. The first defendant does not object to Item 1 of the Schedule. Objection is taken to Item 2 on the basis that Ms Holt’s tax invoice, and proof of payment, is not relevant to an issue in the proceedings. I suppose the invoice may be relevant if, for example, the tax invoice provided details of the task which Ms Holt was asked to undertake, or how she went about that task. I will permit it.

8. Objection is taken to Item 3, where it is not entirely clear what is sought. The first defendant also observes that Ms Holt has stated in her report at [43]: (emphasis added)

... I attended the Registry of the Supreme Court of New South Wales on 18 January 2023 in the company of Mr Frank Cutri, Cutri & Associates. Here, I undertook a macroscopic and microscopic examination of the documents said to be the “original” of the questioned deed held by the Courts. As outlined above ... the version of the questioned deed held by the Court was found to be a non-original document, as initially suspected.

9. I agree that Item 3 is not clear. I will grant leave, however, to issue a subpoena requiring production of Ms Holt’s notes or working papers, to the extent that these documents refer to whether the documents examined were originals or copies. Where Ms Holt examined the documents in the Court file, Ms Holt’s understanding of who supplied the documents to the Court is not relevant in any event.

10. The first defendant submitted that Item 4 was also unclear. If the plaintiff sought the document at Appendix D of Ms Holt’s report, then no objection was taken. The plaintiff’s submission does not clarify the matter. I am not prepared to grant leave in respect of Item 4, where it is quite unclear what is sought. Ms Holt must be able to understand what she is being asked to produce so that she can comply with the subpoena, it being an order of this Court.

Subpoena to first defendant

11. The schedule to the proposed subpoena to the first defendant seeks the following material:

1.   All documents of evidence detailed in all Affidavits signed and affirmed/sworn by you from 2018 until today in relation to initial proceedings Including but not limited to documents of reference of bank records of payments to plaintiff, statements of third parties and claims of authenticity.

2.   Documentary Proof of work from 10th November 2013 until today.

3.   Documentary Records of telephone account with mobile number 0488 500 449 that was used to send SMS's and make on or around 10th November 2013.

4.   Documentary Phone records of mobile account with phone number 0488 500 449 used to make phone calls to plaintiff.

5.   Documentary Proof of whereabouts on or around 3rd December 2013 when the Deed of Acknowledgement was signed. Including but not limited to receipts, maps records and financial statements indicating your location.

6.   Documentary proof and TAX INVOICE with account evidence that you indeed have paid for such a forensic report by Melanie Holt of DiD P/L dated 21st January 2023.

7.   Documentary evidence that the legal team you currently have representing you is of righteous means and accounted for financially. I would like to view such evidence and documents that since 2018 you have paid for and are up to date with your legal accounts and where and how that was funded from. A private legal team must be paid for. If pro bono then that equates to no costs against me from your legal team.

12. In relation to Item 1 in the Schedule, the first defendant has no objection to producing all affidavits by him from 2018 until today in relation to the "initial proceedings", assumed to be proceedings number 2018/184682. However, in relation to item 1, the first defendant objects to the inclusion of the words, “...including but not limited to documents of reference of bank records of payments to plaintiff, statements of third parties and claims of authenticity”. Bank statements were said to be irrelevant to the issues in dispute. Further, it was said to be unclear what was sought in respect of "statements of third parties and claims of authenticity".

13. As I understand the plaintiff’s submission, Item 1 is not so limited: “the items requested of financial records but not limited to refers to the first defendant claiming in his affidavit dated 3rd April 2018 that he was paying me $50 and that money was given to him by a third party as a gift but nothing to prove such claims”.

14. I am at something of a disadvantage as I do not have a copy of the affidavits provided by the first defendant in the “initial proceedings,” and thus it is difficult to follow the submission. In an abundance of caution, I will grant leave for the subpoena to require production of any bank statements in respect of the payment described. The balance of Item 1 is quite unclear and it is not fair to require the first defendant to search for documents which may fall within the paragraph.

15. The first defendant objected to Items 2 and 6 in the Schedule on the basis that those documents are not relevant to the issues in the proceedings. The plaintiff submitted that each item was relevant “for reasons maybe beyond anyone's understandings.” I agree that Item 2 does not appear to be relevant to any fact in issue. For the same reasons as given in respect to the subpoena to Ms Holt, I will permit Item 6.

16. The first defendant did not object to Items 3 and 5 in the Schedule. In relation to Item 4, the first defendant submitted that production of such records should be accompanied by a limited time frame, rather than seeking production of such records at large. The plaintiff objected to the imposition of any timeframe.

17. It is customary to specify a timeframe to both ensure that the documents are relevant and that the burden of gathering the material is not unduly onerous. In the absence of any timeframe, Item 4 would require phone records to be located for any calls ever made to the plaintiff. I do not know how long the plaintiff and the first defendant have known one another. Even requiring the production of such records from the date of Deed of Acknowledgement would call for the production of some ten years’ of records which, on its face is likely an unduly onerous timeframe. In the absence of any limitation on this category, I am not prepared to grant leave.

18. The first defendant did not make submissions in respect of Item 7, which was added to the proposed subpoena in the plaintiff’s submissions in reply. As I perceive it, the documents sought in Item 7 may be relevant once the substantive issues in the proceedings have been determined and the time comes to make any costs orders. I am not minded to grant leave to require production of this material at this stage. This matter can be re-visited, if need be, when costs orders are to be made.

Orders

19. For these reasons, I make the following orders:

1. Pursuant to rule 7.3 of the Uniform Civil Procedure Rules 2005 (NSW), grant leave to the plaintiff to issue a Subpoena to Produce (Form 26A) to Melanie Holt with the following schedule:

1. All documents of evidence detailed in your Forensic report dated 21st January 2023 that was used to come to the conclusion you have.

2. Tax invoice issued in respect of your report dated 21 January 2023 and any receipt issued on payment of same.

3. Notes or working papers which evidence whether the documents examined in the course of preparing your report dated 21 January 2023 were copies or originals.

2. Pursuant to rule 7.3 of the Uniform Civil Procedure Rules 2005 (NSW), grant leave to the plaintiff to issue a Subpoena to Produce (Form 26A) to Peter Arambatzis with the following schedule:

1. Bank statements in respect of any payments made by the first defendant to the plaintiff referred to in the first defendant’s affidavit dated 3 April 2018 filed in proceedings 2018/184682.

2. Documentary proof and TAX INVOICE with account evidence that you indeed have paid for such a forensic report by Melanie Holt of DiD P/L dated 21st January 2023.

3. Documentary Records of telephone account with mobile number 0488 500 449 that was used to send SMS's and make on or around 10th November 2013.

4. Documentary Proof of whereabouts on or around 3rd December 2013 when the Deed of Acknowledgement was signed. Including but not limited to receipts, maps records and financial statements indicating your location.

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Decision last updated: 13 October 2023