Mohareb v Palmer
[2015] NSWDC 411
•20 February 2015
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 275Texts Cited: Ritchie's Uniform Civil Procedure NSW Category: Procedural and other rulings Parties: Plaintiff: Nader Mohareb
First Defendant: Matt Palmer
Second Defendant: Annette PalmerRepresentation: Counsel:
Solicitors:
Plaintiff: In person
Defendant: Mr M Lewis
Plaintiff: In person
Defendant: Kennedys
File Number(s): 2014/243522 Publication restriction: None
Judgment
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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.
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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.”
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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 of subpoena in certain circumstances requires leave
(1) A subpoena may not be issued, except by leave of the court, unless the party at whose request the subpoena is to be issued is represented by a solicitor in the proceedings.
(2) Leave under subrule (1) may be given either generally or in relation to a particular subpoena or subpoenas.
(3) Despite subrule (1), a subpoena may not be issued in relation to proceedings in the Small Claims Division of the Local Court, except by leave of the court, in any circumstances.”
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The notes to r 7.3 UCPR in Ritchie's Uniform Civil Procedure NSW are as follows:
“[7.3.10] Unrepresented parties require leave to issue subpoena
Unrepresented parties must seek leave of the court before a subpoena may be issued at their request. The subpoenas sought to be issued must be filed at the registry of the Supreme Court together with a statement of written reasons demonstrating the relevance of the documents or evidence sought. The relevant forms are:
- Subpoena to attend to give evidence — Form 25 (written reasons should state the relevance of the subpoenaed party’s evidence to proceedings);
- Subpoena to produce with subpoena notice and declaration —Form 26A (written reasons should state the relevance of the documents sought from the producing party to proceedings);
- Subpoena to attend to give evidence and to produce with subpoena notice and declaration — Form 27A (written reasons should include all the information above).”
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In these proceedings, the plaintiff was given leave to issue a subpoena on 24 October 2010; however, it is clear from that text of that order that the sole leave that was given was to for a subpoena to Broken Bay Water Police Pty Ltd. No general leave was given in that order. The obligations that a Court has to litigants in person are helpfully set out in the notes to r 7.1, at [7.1.25] and, in relation to the issued of subpoenae, at [7.1.35]. Having noted those provisions and that they have not been complied with, in that Mr Mohareb considered that the leave he was given was general, I note that that would not be fatal to the result were it the case that the subpoena was issued in the ordinary course of proceedings and the subpoena was not otherwise the subject of objection or that the documents in questions were supplied.
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In the present case there are two problems with the subpoena. The first is that the very broad terms of the document sought are strongly suggestive of a fishing expedition, and the second is that there is a response from Facebook Australia in the form of a letter from Gadens dated 30 January 2015 which makes it clear that Facebook Australia does not have the document to produce. The precise terms of this letter are as follows:
“Facebook Australia does not have any documents or things to produce in response to the subpoena.
The subpoena requests records and content of users of the Facebook website. As explained in its terms of use, the Facebook service, including the website is operated by Facebook inc, a corporation organised and existing under the laws of the United States, and Facebook Ireland Limited, a company organised and existing under the laws of the Republic of Ireland. However, Facebook Australia does not operate, control, or host content available at facebook.com or facebook.com.au. It has no access to Facebook user content and is not in possession of any material sought under the subpoena. Facebook Australia therefore cannot take any action on this request. For that reason, please consider this letter as Facebook Australia's formal objection to the subpoena. Any further inquiries should be directed to the proper entity.
In the circumstances, we assume it is not necessary for Facebook Australia to take any further action in response to this subpoena.
Please note that we are not instructed to accept service on behalf of our client. Facebook Australia reserves all of its rights.”
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Facebook Australia has made it clear that it does not have the documents in question. I consider the contents of their letter to be reasonable in the circumstances. Mr Mohareb submits that Facebook is a company which has organised its affairs in order to avoid subpoenae and for that matter tax obligations. However, the circumstances in which it has been made clear by Facebook Australia Pty Ltd that it does not have those documents, for Mr Mohareb to be submitting to me that I should direct them to produce these document and to make the inquiries of the relevant “proper entity”, is inappropriate.
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Finally, I note that a subpoena is issued prematurely. The plaintiff’s statement of claim has been struck out with leave to replead, and only a draft statement of claim is before the Court. Although, it may be that this draft statement of claim has been filed, it is nevertheless the subject of challenge, and I note that an application to strike out the statement of claim is listed for argument on 5 March 2015.
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The circumstances in which issuing of a premature subpoena in defamation proceedings will be permitted by the Court is discussed in Buswell v Carles [2012] WASC 509, where McKechnie J sets out that application of this sort should be looked at through the lens of the relevant Court rules, and in particular those provisions of the civil procedure legislation which aim at the elimination of delay. Of course, it may be that the early issue of a subpoena may cause delay and expense, rather than diminish it, as his Honour notes at [16], citing Wookey v Quigley (No 5) [2011] WASC 275.
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The question is one of balancing the interests of justice and ensuring that what is sought is not a form of discovery from a non-party, or of something which is oppressive. It is not appropriate for this Court to be performing surgery on the contents of the subpoena in order to tease out some document or documents which may be documents appropriate to seek from the “proper entity”. That is a matter for the plaintiff. That is the whole point of adversarial litigation. While litigants in person are entitled to assistance from the Court, that extends to their being adequately informed about their respective rights and responsibilities, but not to the performance of the tasks necessary for those respective rights and responsibilities to be enforced being prepared by the Court.
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Facebook Australia have not sought any order for costs, and as Mr Mohareb is a litigant in person he is not entitled to an order for professional costs in any event.
Orders
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Taking all of the above into account, the orders I make are as follows:
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).
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.
Plaintiff’s notice of motion filed 2 February 2015 dismissed.
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Decision last updated: 13 September 2016
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