Mohareb v Palmer - [2015] NSWDC 411

District Court

New South Wales

Medium Neutral Citation: Mohareb v Palmer [2015] NSWDC 411
Hearing dates: 20 February 2015
Date of orders: 20 February 2015
Decision date: 20 February 2015
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Defendant’s application to strike out the plaintiff’s statement of claim is listed for argument before Gibson DCJ on Thursday 5 March 2015 at 2:00pm (estimate 2 hour).
(2) Facebook Australia Pty Ltd called outside Court 13D three times at 11:55am – no appearance. Note the correspondence from Facebook Australia Pty Ltd advising that no documents are produced and that they will take no further action in response of the subpoena.
(3) Plaintiff’s notice of motion filed 2 February 2015 dismissed.

Catchwords: PRACTICE AND PROCEDURE – the plaintiff, a litigant in person, issues a subpoena to Facebook without leave and at a premature stage of the litigation – Facebook Australia advises it has no documents to produce – application by plaintiff to order compliance with subpoena refused
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 7.3
Cases Cited: Buswell v Carles [2012] WASC 509
Wookey v Quigley (No 5) [2011] WASC 275
Texts Cited: Ritchie's Uniform Civil Procedure NSW
Category: Procedural and other rulings
Parties: Plaintiff: Nader Mohareb
First Defendant: Matt Palmer
Second Defendant: Annette Palmer
Representation:
Counsel:
Plaintiff: In person
Defendant: Mr M Lewis
Solicitors:
Plaintiff: In person
Defendant: Kennedys

File Number(s): 2014/243522
Publication restriction: None

Judgment

The plaintiff in these proceedings is self‑represented. He has filed a notice of motion returnable today seeking orders as follows:

That Facebook Australia Pty Ltd’s objection to this subpoena issued to in on 24 December is rejected.

That Facebook Australia Pty Ltd is ordered to comply with subpoena, but [sic] issued to it in on 24 December 2014.

The plaintiff issued a subpoena to Facebook on 24 December 2014 seeking the following documents:

“The documents or things you must produce are as follows:
On or around 21 July 2014 21 a copy of a poster shown on page 1 of that attachment was uploaded to the Scotland Island Community Facebook page at This has since been removed from the said Facebook page by the page moderator around the same date the thread of conversation shown on pages 2 to 4 of that attachments took place.
What is required to be provided in response to this subpoena is:
‑ the identity and contact details of the person who uploaded the above‑mentioned poster;
‑ an electronic copy of the above‑mentioned poster;
‑ details of the identities and contact details of all those who saw or accessed the above‑mentioned poster and/or of those who participated or accessed the above‑mentioned thread of conversation;
‑ anything else;
‑ whether by way of information or documents or anything else;
‑ which is or maybe connected to the above‑mentioned poster and thread of conversation.”

The plaintiff issued this subpoena without leave, contrary to the provisions of r 7.3 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), which states:

“7.3 Issue…

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 Mohareb v Palmer

Details

AGLC: Mohareb v Palmer [2015] NSWDC 411
Case: [2015] NSWDC 411
Decision Date: 20 February 2015

CaseChat Overview and Summary

In the matter of Mohareb v Palmer, the plaintiff, appearing as a litigant in person, issued a subpoena to Facebook without obtaining leave and at an early stage in the litigation process. Facebook Australia Pty Ltd responded that it had no documents to produce in response to the subpoena. The plaintiff subsequently filed a notice of motion seeking an order for compliance with the subpoena. The court was required to decide whether the plaintiff's actions were justified and whether Facebook should be compelled to produce documents despite having no documents to offer.

The court considered the procedural requirements for issuing subpoenas, particularly in relation to litigants in person. It noted that subpoenas should be issued with leave of the court and at an appropriate stage in the litigation. The court also considered the rights of the defendant to be protected from unnecessary and vexatious legal processes. The court held that the plaintiff's failure to seek leave before issuing the subpoena was unjustified, and that Facebook was not required to produce any documents. The plaintiff's notice of motion was dismissed.

The court concluded that the plaintiff's actions were not justified, and that Facebook was not required to produce any documents. The court emphasised the importance of following proper legal procedures, particularly for litigants in person, and the need to protect defendants from unnecessary and vexatious legal processes.

The court ordered that the defendant's application to strike out the plaintiff's statement of claim was to be listed for argument before Gibson DCJ on Thursday 5 March 2015 at 2:00pm (estimate 2 hours). The court also noted that Facebook Australia Pty Ltd had been called outside Court 13D three times at 11:55am but had not appeared. The correspondence from Facebook Australia Pty Ltd advised that no documents were produced and that they would take no further action in response to the subpoena. The plaintiff's notice of motion filed 2 February 2015 was dismissed.

Orders

Orders of the court

(1) Defendant’s application to strike out the plaintiff’s statement of claim is listed for argument before Gibson DCJ on Thursday 5 March 2015 at 2:00pm (estimate 2 hour).

(2) Facebook Australia Pty Ltd called outside Court 13D three times at 11:55am – no appearance. Note the correspondence from Facebook Australia Pty Ltd advising that no documents are produced and that they will take no further action in response of the subpoena.

(3) Plaintiff’s notice of motion filed 2 February 2015 dismissed.

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:	Mohareb v Palmer [2015] NSWDC 411
Hearing dates:	20 February 2015
Date of orders:	20 February 2015
Decision date:	20 February 2015
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Defendant’s application to strike out the plaintiff’s statement of claim is listed for argument before Gibson DCJ on Thursday 5 March 2015 at 2:00pm (estimate 2 hour). (2) Facebook Australia Pty Ltd called outside Court 13D three times at 11:55am – no appearance. Note the correspondence from Facebook Australia Pty Ltd advising that no documents are produced and that they will take no further action in response of the subpoena. (3) Plaintiff’s notice of motion filed 2 February 2015 dismissed.
Catchwords:	PRACTICE AND PROCEDURE – the plaintiff, a litigant in person, issues a subpoena to Facebook without leave and at a premature stage of the litigation – Facebook Australia advises it has no documents to produce – application by plaintiff to order compliance with subpoena refused
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 7.3
Cases Cited:	Buswell v Carles [2012] WASC 509 Wookey v Quigley (No 5) [2011] WASC 275
Texts Cited:	Ritchie's Uniform Civil Procedure NSW
Category:	Procedural and other rulings
Parties:	Plaintiff: Nader Mohareb First Defendant: Matt Palmer Second Defendant: Annette Palmer
Representation:	Counsel: Plaintiff: In person Defendant: Mr M Lewis Solicitors: Plaintiff: In person Defendant: Kennedys
File Number(s):	2014/243522
Publication restriction:	None