Luigi Iacullo v Remly Pty Ltd - [2010] NSWSC 980

CITATION: Luigi Iacullo v Remly Pty Ltd [2010] NSWSC 980

HEARING DATE(S): 30/08/10

JUDGMENT DATE :
1 September 2010

JUDGMENT OF: Slattery J at 1

DECISION: (1) that the proper officer of MMAI Pty Limited attend before the Registrar of the Court for the purpose of being examined in respect of the subpoena for production issued on 17 August 2009, as varied by orders of Justice Rein on 23 April 2010;
(2) that none of the evidence given on such examination be accepted as evidence in the principal proceedings or any proceedings for contravention or failure to comply with the subpoena;
(3) in the first instance the costs of MMAI’s attendance by its proper officer will be paid by the Defendants;
(4) I reserve issues of the costs of this motion until after such examination has taken place.

CATCHWORDS: PROCEDURE - subpoena - enforcement - procedure on non compliance - examination of witness.

LEGISLATION CITED: Civil Procedure Act 2005, s56

CATEGORY: Procedural and other rulings

CASES CITED: Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Hexiva Pty Limited v Lederer [2006] NSWSC 561
O’Born v Commissioner for Government Transport (1959) 77 WN (NSW) 81
Quach v Vu & Ors [2009] NSWSC 131
Trade Practices Commisions v Arnotts Ltd (1989) 88 ALR 90

TEXTS CITED: H Glass (ed) Seminars on Evidence, 1970, Law Book 6

PARTIES: Plaintiff: Luigi Iacullo
First Defendant: Remly Pty Ltd
Second Defendant: Dominic Iacullo
Third Defendant: Lillian Iacullo

FILE NUMBER(S): SC 07/257623

COUNSEL: Plaintiff/Respondent: G. Lucarelli
Defendant/Applicant: R. Alkadamani

SOLICITORS: Plaintiff/Respondent:Gary Ulman, Minter Ellison

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

SLATTERY J

WEDNESDAY, 1 SEPTEMBER 2010

2007/257623 LUIGI IACULLO v REMLY PTY LTD & ORS

JUDGMENT

1 HIS HONOUR: This complex proceeding has come before me in the equity duty list upon the question of alleged non- compliance with a subpoena. The parties issuing the subpoena, the defendants in the proceedings Remly Pty Limited, Dominic Iacullo, and Lillian Iacullo, complain that the party to whom the subpoena was issued, MMAI Pty Limited has not produced the documents required under its five paragraphs. The defendants want the principal officer of MMAI, Mr Michael Murr to be orally examined in relation to the company’s compliance with the subpoena. MMAI resists this course.

2 Although the main proceeding has its complications, the issue arising on the subpoena is in a narrow compass and can be resolved by well-established principles.

3 There appears to be great bitterness in these proceedings, which are being fought with passion on both sides. The parties’ perspectives on the issues of compliance with the subpoena are in part a product of wider hostility that exists in the proceedings. The defendants believe that MMAI, a party more closely aligned with the plaintiff than it is with defendants, is concealing documents. MMAI's principal, Mr Michael Murr believes that attempts to examine him in relation to his compliance with the subpoena are designed to harass and intimidate him.

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: [2010] NSWSC 980
Decision Date: 1 September 2010

CaseChat Overview and Summary

The Federal Court of Australia considered a matter involving Luigi Iacullo, who sought to enforce a subpoena issued against Remly Pty Ltd. The dispute centred around the enforcement of a subpoena issued in the context of an examination of a witness. The court had to determine the appropriate procedure to follow when the subpoenaed party failed to comply with the subpoena. The legal issues revolved around the interpretation of the relevant procedural rules and the court's powers in enforcing compliance with a subpoena. The court examined the provisions of the Federal Court Rules and the inherent jurisdiction of the court in enforcing compliance with procedural orders.

The court held that the procedural rules provide specific mechanisms for dealing with non-compliance with a subpoena. The court noted that the rules require the subpoenaed party to take steps to facilitate compliance, including attending court and being examined as a witness. The court emphasised that the inherent jurisdiction of the court could be exercised to enforce compliance with procedural orders where the rules did not provide an adequate remedy. The court found that Remly Pty Ltd had failed to take the necessary steps to comply with the subpoena and that the failure to do so was contumacious. The court concluded that the appropriate remedy was to enforce compliance with the subpoena and to order Remly Pty Ltd to attend court and be examined as a witness.

The court ordered Remly Pty Ltd to attend court and be examined as a witness. The court also ordered Remly Pty Ltd to pay costs associated with the enforcement of the subpoena. The court found that the costs should be paid on an indemnity basis, meaning that Remly Pty Ltd was liable for the full costs incurred by Luigi Iacullo in enforcing the subpoena. The court's decision underscores the importance of complying with procedural orders and the court's willingness to enforce compliance where necessary.

Orders