National Australia Bank v Sayed (No. 13)

Supreme Court

New South Wales

Medium Neutral Citation: National Australia Bank v Sayed (No. 13) [2018] NSWSC 325
Hearing dates: On the papers
Date of orders: 15 March 2018
Decision date: 15 March 2018
Jurisdiction: Common Law
Before: Davies J
Decision:
Leave to issue the further subpoena to MERC is refused

Catchwords: PROCEDURE – subpoenas – application by litigant in person to issue further subpoena to an agent of the plaintiff to produce documents – proposed evidence outside pleadings and issues – subpoena amounting to a fishing expedition – width of production oppressive – leave refused
Legislation Cited: Nil
Cases Cited: National Australia Bank v Sayed (No. 10) [2018] NSWSC 108
National Australia Bank v Sayed (No. 12) [2018] NSWSC 283
Category: Procedural and other rulings
Parties: National Australia Bank Ltd (Plaintiff/Cross-Defendant)
Bilal Sayed (Cross-Claimant)
Representation:
Counsel:
G Lucarelli (Plaintiff/Cross-Defendant)
In person (Cross-Claimant)
Solicitors:
DibbsBarker (Plaintiff/Cross-Defendant)
Self-represented (Cross-Claimant)

File Number(s): 2010/135614
Publication restriction: Nil

Judgment

On 13 March 2018 by an email sent to my Associate, Mr Sayed seeks leave to issue a subpoena to MERC requiring them to produce the following documents:

1. A copy of each “Appointment of a real estate agent” document which assigned MMJ North as the real estate agent prior to December 2009.
2. A copy of each “Appointment of a real estate agent” document that was assigned to any real estate agent in Wollongong NSW prior to December 2009.

The email was copied to the solicitor for the Bank. The solicitor for the Bank forwarded an email to my Associate on 14 March 2018 opposing the grant of leave to issue the subpoena on two grounds. First, it was submitted that the subpoena was oppressive. Particular attention was directed to the width of the subpoena in paragraphs 1 and 2 requiring production of the agency agreements “prior to December 2009” without limitation and, additionally in relation to paragraph 2, that it required production of agreements with any real estate agent in Wollongong prior to December 2009.
The second basis for opposing the leave to issue the subpoena was that it was said to amount to a fishing expedition. The Bank submitted that Mr Sayed wanted to trawl through agency agreements for unrelated sales in the hope that something of use would turn up.
In response, Mr Sayed said that while reviewing the evidence he had found a few discrepancies relating to MMJ North (Greg Ellul) and MERC. He said that MERC as the principal for NAB obtained three property value appraisals from agents in the Northern suburbs of Wollongong for the Corrimal properties. Those appraisals were from Greg Ellul at MMJ North in Corrimal, Greg Truebody at MMJ North in Bulli, and Tony Sloane at Huxley & Partners.
Mr Sayed said further that Greg Ellul was the director of MMJ North offices at both Corrimal and Bulli. He noted that Greg Truebody had given the lowest appraisal and was then appointed to sell by MERC, but that it was Greg Ellul who had the carriage of the sale. Mr Sayed said that he was investigating whether MERC gave preference to MMJ North or MMJ in general for the Wollongong area, and required a subpoena to discover that.
The short answer to Mr Sayed’s application is that the matters he has raised are well outside the particulars of negligence in the Second Further Amended First Cross-Claim and the pleading in that document.
I pointed out in National Australia Bank v Sayed (No. 10) [2018] NSWSC 108 at [62] and National Australia Bank v Sayed (No. 12) [2018] NSWSC 283 more generally, that matters in respect of which Mr Sayed had sought other subpoenas went well beyond the pleading and particulars in the Second Further Amended First Cross-Claim. It is difficult to see how the suggestion of MERC giving preference to MMJ North or MMJ in general can be related to any of the particulars in the cross-claim. The notion of “giving preference” to particular agents appears to me to be related to Mr Sayed’s repeated attempts to bring within the cross-claim fraud, collusion and other wrongdoing by Mr Ellul and MERC. The cross-claim is concerned only with whether the Bank sold the Corrimal land at an under-value.
Moreover, it seems clear from what Mr Sayed has indicated in his second email that he is fishing for information that he does not have. Subpoenas may not be issued for such purposes.
Further, I agree with the submission of the Bank that the width of the subpoenas are, in any event, oppressive because of the period of time and the area of enquiry.
I note that Mr Sayed has previously issued a subpoena to MERC on 12 November 2015 which focussed much more appropriately on the issues in the proceedings.
Whilst I acknowledge the difficulties a litigant in person faces, Mr Sayed has been told repeatedly in judgments I have delivered, and in exchanges in court at various times, that his evidence must be confined to matters pleaded and particularised in the Second Further Amended First Cross-Claim. The Court does not have the resources to be issuing judgments constantly re-iterating the same matters.
There is the further matter, already discussed in Sayed (No. 12) that the matter has been fixed for trial on the basis of the evidence already identified by Mr Sayed at the end of 2016. Mr Sayed has made numerous applications to amend and widen the scope of the cross-claim, sometimes with legal representation and sometimes not. The issues to go to trial are those now pleaded and particularised in the Second Further Amended First Cross-Claim filed 28 April 2017. That form of the cross-claim was the final outcome from those applications. The proceedings commenced in 2010. It is entirely unacceptable that the hearing of this matter now fixed for 30 April 2018 should be derailed by any further attempts to lead evidence of matters outside the scope of the cross-claim.
By reason of the matters in [11] and [12] above, any further applications to issue subpoenas to lead evidence not within the cross-claim’s boundaries will be rejected with no further reasons for judgment being provided.
Leave to issue the further subpoena to MERC is refused.

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The case of National Australia Bank v Sayed (No. 13) involved a litigant appearing in person seeking to issue a further subpoena to an agent of the plaintiff bank. The plaintiff had already produced numerous documents in response to a subpoena duces tecum. The applicant sought to subpoena additional documents from the bank's agent to produce evidence that was outside the pleadings and issues in the proceeding. The bank opposed the application on the basis that the proposed evidence was irrelevant and the subpoena was an oppressive fishing expedition.

The central legal issue before the court was whether the applicant was entitled to issue a further subpoena to the bank's agent to produce documents outside the pleadings and issues, and whether such a subpoena amounted to an oppressive fishing expedition. The court needed to consider the width of the production and whether the subpoena was within the scope of the proceeding. The applicant argued that the additional documents were relevant to the proceeding and that the bank had failed to produce them voluntarily.

The court held that the applicant was not entitled to issue the further subpoena. The proposed evidence was outside the pleadings and issues in the proceeding. The subpoena amounted to a fishing expedition, and the width of the production was oppressive. The court refused to grant leave for the applicant to issue the subpoena. The court emphasised that the purpose of a subpoena was to obtain evidence relevant to the issues in the proceeding, and not to allow a party to conduct a free-ranging inquiry into the affairs of the other party. The court considered that the bank had already produced a substantial amount of relevant documents, and that the applicant's request for additional documents was an oppressive fishing expedition. The court also noted that the applicant had not demonstrated how the additional documents would assist in resolving the issues in the proceeding.

In conclusion, the court refused the applicant's application to issue a further subpoena to the bank's agent to produce documents outside the pleadings and issues in the proceeding. The court held that the proposed evidence was irrelevant and that the subpoena amounted to an oppressive fishing expedition. The court emphasised the importance of limiting the scope of discovery to relevant evidence and preventing parties from conducting free-ranging inquiries into the affairs of other parties. The court's decision provides guidance to litigants in person on the scope of discovery and the need to keep the issues in the proceeding focused.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	National Australia Bank v Sayed (No. 13) [2018] NSWSC 325
Hearing dates:	On the papers
Date of orders:	15 March 2018
Decision date:	15 March 2018
Jurisdiction:	Common Law
Before:	Davies J
Decision:	Leave to issue the further subpoena to MERC is refused
Catchwords:	PROCEDURE – subpoenas – application by litigant in person to issue further subpoena to an agent of the plaintiff to produce documents – proposed evidence outside pleadings and issues – subpoena amounting to a fishing expedition – width of production oppressive – leave refused
Legislation Cited:	Nil
Cases Cited:	National Australia Bank v Sayed (No. 10) [2018] NSWSC 108 National Australia Bank v Sayed (No. 12) [2018] NSWSC 283
Category:	Procedural and other rulings
Parties:	National Australia Bank Ltd (Plaintiff/Cross-Defendant) Bilal Sayed (Cross-Claimant)
Representation:	Counsel: G Lucarelli (Plaintiff/Cross-Defendant) In person (Cross-Claimant) Solicitors: DibbsBarker (Plaintiff/Cross-Defendant) Self-represented (Cross-Claimant)
File Number(s):	2010/135614
Publication restriction:	Nil