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Liristis v Gadelrabb

Liristis v Gadelrabb

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CITATION: Liristis v Gadelrabb [2009] NSWSC 441

HEARING DATE(S): 28 April 2009

JURISDICTION: Equity Division
Duty Judge List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 28 April 2009

DECISION: Parts of subpoena set aside

CATCHWORDS: EVIDENCE - Subpoenas - Legitimate forensic purpose - application to set aside - where defendant’s subpoena seeks criminal records of plaintiff and plaintiff’s father in relation to convictions for dishonesty - whether subpoena which seeks documents relevant only to credit is legitimate - where credit is an important issue - whether subpoena is “trawling” for evidence with which to impugn credit of witness - whether reasonable grounds to think that documents relevant to impugn credit will be found - Held: ample reason to think that relevant documents will be found in relation to plaintiff - No reasons before court to think evidence will be found against plaintiff’s father

LEGISLATION CITED: (NSW) Evidence Act 1995, s 103(2)
(NSW) Uniform Civil Procedure Rules 2005 r 33.4(1)

CATEGORY: Procedural and other rulings

CASES CITED: Fried v National Australia Bank (2000) 175 ALR 194

PARTIES: Tony Liristis (plaintiff)
Julia Gadelrabb (defendant)

FILE NUMBER(S): SC 5533/07

COUNSEL: Ms B K Nolan (plaintiff)
Mr R G Keller (defendant)

SOLICITORS: Tiernan & Associates (plaintiff)
Peter J Webb (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

BRERETON J

Tuesday 28 April 2009

5533/07 Tony Liristis v Julia Gadelrabb

JUDGMENT (ex tempore)

1 HIS HONOUR: These proceedings, between the plaintiff Tony Liristis and the defendant Julia Gadelrabb, for specific performance of an alleged oral contract for the sale of land, are listed for hearing before Ward J to commence on Thursday 30 April 2009 for two days. A central issue is whether the alleged oral contract on which the plaintiff sues was in fact made. In that respect, the evidence is word against word – the plaintiff’s word apparently supported by his father, Mr Tasos Liristis, against the word of the defendant.

2 On 15 April 2009, the defendant issued a subpoena to produce, addressed to the Police Commissioner, returnable on 24 April 2009, requiring production of:

Oaths Act

3 By Notice of Motion filed on 20 April 2009, the plaintiff seeks an order setting aside the subpoena, contending that it is without legitimate forensic purpose and is an abuse of process.

4 It will be apparent from the above short summary of the issues in the principal proceedings, and it is not controversial, that the respective credit of the plaintiff and his father on the one hand and of the defendant on the other, will…

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.

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Details

Case: [2009] NSWSC 441
Decision Date: 28 April 2009

CaseChat Overview and Summary

The case of Liristis v Gadelrabb was heard in a lower Australian court. The plaintiff, Liristis, sought to set aside a subpoena issued by the defendant, Gadelrabb. The subpoena sought the criminal records of the plaintiff and his father, with a particular focus on convictions for dishonesty. The subpoena was issued in the context of a civil dispute where the plaintiff's credit was a significant issue. The central legal issues before the court were whether the subpoena was for a legitimate forensic purpose and whether there were reasonable grounds to believe that the documents sought would be relevant to the issue of credit.

The court held that the subpoena was not an illegitimate attempt to trawl for evidence with which to impugn the credit of the witness. Given that the plaintiff's credit was a significant issue in the case, the subpoena's focus on documents relevant to credit was deemed legitimate. The court found that there were ample reasons to believe that relevant documents would be found in relation to the plaintiff, as his credit was a material issue in the proceedings. Conversely, the court found that there were no reasons to think that the evidence sought in relation to the plaintiff's father would be relevant, as there was no indication that his credit would be a material issue. Therefore, the subpoena in relation to the father was considered improper.

The court ordered that the subpoena in relation to the plaintiff's criminal records could stand, but the subpoena concerning the father's criminal records was set aside. This decision underscored the importance of ensuring that subpoenas are targeted and relevant to the issues at hand, avoiding unnecessary intrusions into a party's private life and ensuring that the evidence sought is pertinent to the proceedings.

Orders