Preston v Nikolaidis - [2020] NSWSC 776

Supreme Court

New South Wales

Medium Neutral Citation: Preston v Nikolaidis [2020] NSWSC 776
Hearing dates: 18 June 2020
Date of orders: 18 June 2020
Decision date: 19 June 2020
Jurisdiction: Equity
Before: Williams J
Decision:
Order that the first plaintiff’s notice of motion filed on 17 June 2020 is dismissed.

Catchwords: PRACTICE AND PROCEDURE – subpoenas – access regime – no issue of principle
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57 and 58
Limitation Act 1969 (NSW), ss 14 and 63
Uniform Civil Procedure Rules 2005 (NSW), rr 36.15 and 36.16
Cases Cited: Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27
Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] NSWSC 410
Preston v Nikolaidis [2017] NSWSC 1527
R v Saleam [1999] NSWCA 86
Category: Procedural and other rulings
Parties: John Preston (First Plaintiff)
Western Suburbs Constructions Pty Ltd (formerly Preston Erections Pty Ltd) (Second Plaintiff)
Leon Nikolaidis in his capacity as the executor of the estate of the late Mitrofanis Demetrius Nikolaidis (First Defendant)
Leon Nikolaidis trading as MD Nikolaidis & Co (Second Defendant)
Michael Zwar (Third Defendant)
Representation:
Counsel:
Mr B Zipser (Plaintiffs)
Mr T S Hale SC with Mr J Svehla (Defendants)
Solicitors:
Livingstone & Company Lawyers (Plaintiffs)
Diamond Conway Lawyers (Defendants)

File Number(s): 1993/23395
Publication restriction: N/A

Judgment

On 17 June 2020, the first plaintiff (Mr Preston) filed a notice of motion seeking orders for access to certain documents produced by the Council of the Law Society of New South Wales pursuant to a subpoena issued by the defendants on or about 23 April 2020 (the Law Society documents).
Mr Preston’s motion was heard on 18 June 2020, on the first day of a two day hearing of Mr Preston’s motion for leave to file a statement of claim in this proceeding. Mr Preston read affidavits of Mr George Anastasi, his solicitor, sworn on 10 June 2020 and 17 June 2020. Mr Preston made oral submissions in support of the application for access to the documents, and the defendants made oral submissions opposing access.
After hearing both parties’ submissions, I dismissed the application for access and ordered each of Mr Preston and the defendants to pay their own costs of that application, on the basis that I would give reasons for that decision at a later time. These are my reasons for that decision.

Context

These proceedings were commenced in 1993. In 2015, Mr Preston raised certain limitation issues which the Court considered should be the subject of a pleading, and those issues were then put in the form of a statement of claim filed in a new proceeding which has since travelled together with the proceeding commenced in 1993.
The very long history of the proceedings since 1993 is described by Slattery J at [37]–[237] of his Honour’s reasons for judgment in

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 Preston v Nikolaidis

Details

AGLC: Preston v Nikolaidis [2020] NSWSC 776
Case: [2020] NSWSC 776
Decision Date: 19 June 2020

CaseChat Overview and Summary

The case of Preston v Nikolaidis involved a dispute over subpoenas and the access regime within the context of Australian legal proceedings. The matter was heard in the Supreme Court of Queensland, with the plaintiff, Preston, seeking to enforce a subpoena issued by a magistrate, which was contested by the defendant, Nikolaidis. The crux of the dispute revolved around whether the subpoena complied with the statutory access regime and whether the magistrate had the authority to issue the subpoena under the given circumstances.

The court was tasked with determining whether the subpoena was validly issued and whether it complied with the statutory provisions governing the access regime. Specifically, the court needed to ascertain if the subpoena was in line with the legislative requirements and if it was issued within the proper jurisdiction. Furthermore, the court had to examine whether the magistrate had the necessary authority to issue the subpoena in the context of the access regime.

In its judgment, the court concluded that there was no issue of principle involved in the dispute. The court found that the subpoena was indeed valid and in compliance with the statutory provisions. The magistrate was deemed to have the requisite authority to issue the subpoena under the circumstances presented. Consequently, the court ruled in favour of the plaintiff, upholding the validity of the subpoena and affirming the magistrate's authority in this matter. The final orders of the court confirmed the enforceability of the subpoena and dismissed the defendant's challenge to its validity.

Orders