Georges v Georges - [2024] NSWDC 402

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Georges v Georges [2024] NSWDC 402
Hearing dates: 18 July 2024, 26 July 2024, 1 August 2024, 8 August 2024
Decision date: 05 September 2024
Jurisdiction: Civil
Before: Wass SC DCJ
Decision:
See [88]

Catchwords:
CIVIL PROCEDURE – Notice of motion – Subpoena to Commissioner of Police (NSW) – Disingenuous assertion of lack of legitimate forensic purpose – Unfounded claim of oppression – Defamation – R33.4 UCPR – Indemnity costs ordered

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)

Cases Cited:
Bailey v Director-General of Land and Water Conservation [2009] NSWCA 100; 74 NSWLR 333
Bassal v Savills (NSW) Pty Ltd (No 3) [2017] NSWSC 911
Franks v Warringah Council [2010] NSWSC 1318
Lucas Industries Ltd v Hewitt (1978) 18 ALR 555; 45 FLR 174
Re Earth Civil Australia Pty Ltd, RCG CBD Pty Ltd, Bluemine Pty Ltd, Diamondwish Pty Ltd and Rackforce Pty Ltd (all in liq) (No 2) [2021] NSWSC 1161

Category: Costs
Parties: Farah Georges (Applicant)
George Georges (Defendant)
Commissioner of Police (NSW) (Respondent)
Representation:
Counsel:
D. Sibtain SC / T. Senior (Plaintiff)
K. Smark SC (Defendant)
Solicitors:
Gadens (Plaintiff)
BlackBay Lawyers (Defendant)
Makinson d’Apice Lawyers (Commissioner of Police (NSW) (Respondent)

File Number(s): 2022/191186
Publication restriction: Nil

JUDGMENT

Introduction

The matter has been listed for a defamation trial, to commence on 16 September 2024.
On 8 March 2024, the plaintiff issued a subpoena for production on the NSW Commissioner of Police (“the Commissioner”), a stranger to the litigation, calling for documents relating to the defendant in the proceedings, as particularised. It was served on the Commissioner on 11 March 2024 (“the subpoena”). The subpoena sought production by 20 March 2024.
Between 18 March 2024 and 26 July 2024, the Commissioner produced documents in partial compliance with the subpoena.
During that period, on 11 July 2024, the Commissioner filed a notice of motion seeking an order pursuant to R33.4 of the UCPR that the subpoena be set aside on two bases:

That the subpoena lacked a legitimate forensic purpose; and

That the call for documents was oppressive.

On 26 July 2024, I dismissed the Commissioner’s motion to set aside the subpoena on the basis that there was no legitimate forensic purpose in what remained to be produced. The claim by the Commissioner, that the call for documents was oppressive, had earlier been abandoned.
The plaintiff made an application for indemnity costs, citing unreasonable conduct by the Commissioner in response to the subpoena, unnecessarily causing the plaintiff to incur costs.
The Commissioner submitted that there ought be no order as costs or alternatively that I make an order for costs in favour of the plaintiff on the ordinary basis from 18 June 2024.

Legal Framework

The importance of recipients of subpoenas complying with their obligations need not be gainsaid.
In Lucas Industries Ltd v Hewitt (1978) 18 ALR 555 at 570; (1978) 45 FLR 174 at 189, Smithers…

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 Georges v Georges

Details

AGLC: Georges v Georges [2024] NSWDC 402
Case: [2024] NSWDC 402
Decision Date: 05 September 2024

CaseChat Overview and Summary

The case of Georges v Georges involved a dispute between the parties, Georges and Georges, regarding defamation and the handling of legal processes. The matter was heard and determined in the Supreme Court of New South Wales. The primary contention was the legitimacy of a subpoena issued to the Commissioner of Police in the context of the defamation proceedings. The defendant, Georges, argued that the subpoena lacked a legitimate forensic purpose and was oppressive, without any valid grounds. The plaintiff, Georges, sought an order for indemnity costs, citing the defendant's disingenuous assertion and unfounded claim of oppression.

The legal issues before the court encompassed the proper use of a subpoena in defamation litigation, the criteria for determining whether such a subpoena serves a legitimate forensic purpose, and the implications of making a claim of oppression without foundation. The court needed to assess whether the defendant's actions were justified or whether they amounted to an abuse of the court process, warranting indemnity costs under Rule 33.4 of the Uniform Civil Procedure Rules.

In its reasoning, the court found that the defendant's assertions regarding the lack of a legitimate forensic purpose and the claim of oppression were not substantiated by the evidence. The court held that the subpoena was issued for a legitimate purpose related to the defamation proceedings and that the defendant's objections were without merit. Consequently, the court ordered indemnity costs in favour of the plaintiff, Georges, for the abuse of process occasioned by the defendant's unfounded claims. This decision underscored the importance of adhering to procedural integrity in civil litigation and the consequences of making baseless allegations of oppression.

Orders

Orders of the court

See [88]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Georges v Georges [2024] NSWDC 402
Hearing dates:	18 July 2024, 26 July 2024, 1 August 2024, 8 August 2024
Decision date:	05 September 2024
Jurisdiction:	Civil
Before:	Wass SC DCJ
Decision:	See [88]
Catchwords:	CIVIL PROCEDURE – Notice of motion – Subpoena to Commissioner of Police (NSW) – Disingenuous assertion of lack of legitimate forensic purpose – Unfounded claim of oppression – Defamation – R33.4 UCPR – Indemnity costs ordered
Legislation Cited:	Civil Procedure Act 2005 (NSW) Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)
Cases Cited:	Bailey v Director-General of Land and Water Conservation [2009] NSWCA 100; 74 NSWLR 333 Bassal v Savills (NSW) Pty Ltd (No 3) [2017] NSWSC 911 Franks v Warringah Council [2010] NSWSC 1318 Lucas Industries Ltd v Hewitt (1978) 18 ALR 555; 45 FLR 174 Re Earth Civil Australia Pty Ltd, RCG CBD Pty Ltd, Bluemine Pty Ltd, Diamondwish Pty Ltd and Rackforce Pty Ltd (all in liq) (No 2) [2021] NSWSC 1161
Category:	Costs
Parties:	Farah Georges (Applicant) George Georges (Defendant) Commissioner of Police (NSW) (Respondent)
Representation:	Counsel: D. Sibtain SC / T. Senior (Plaintiff) K. Smark SC (Defendant) Solicitors: Gadens (Plaintiff) BlackBay Lawyers (Defendant) Makinson d’Apice Lawyers (Commissioner of Police (NSW) (Respondent)
File Number(s):	2022/191186
Publication restriction:	Nil