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Regina v Obeid

Regina v Obeid

Case [2018] NSWSC 1024 5 July 2018

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Supreme Court

New South Wales

Medium Neutral Citation: Regina v Obeid [2018] NSWSC 1024
Hearing dates: 22 June 2018
Date of orders: 05 July 2018
Decision date: 05 July 2018
Jurisdiction: Common Law - Criminal
Before: Beech-Jones J
Decision:
(1)   The accused pay KEPCO Bylong Australia Pty Ltd the sum of $26,980.00 together with interest accruing daily on that amount at a rate of 7.5% per annum from 1 May 2018;

(2)   The enforcement of order 1 be stayed until 28 days after the return of the jury’s verdict, the entry of any plea of guilty or the cessation of the prosecution of the accused whichever comes first;

(3)   In these proceedings, no subpoena may be issued to KEPCO Bylong Australia Pty Ltd on the application of the accused without the leave of a judge of this Court;
(4)   The notice of motion filed 13 April 2018 be otherwise dismissed.
Catchwords: CRIMINAL PROCEEDINGS – subpoena – issued by accused to third party – widely drafted – accused failed to specify forensic purpose of documents sought – subpoena set aside by consent – third party seeks costs of setting aside and complying with subpoena – power of Supreme Court in proceedings on indictment to order costs against accused in relation to subpoena – whether application to set aside a subpoena was a “civil proceeding” – whether inherent powers of Court enable costs order to be made even if Supreme Court rules do not provide for it – UCPR 34.11 – whether “other relief” includes costs – Held no power to award costs of application to set subpoena aside – assessment of costs of compliance – order for payment made with interest – order stayed until conclusion of trial
Legislation Cited: Children (Care and Protection) Act 1987
Civil Procedure Act 2005, ss 3(1), 4(1), 98
Confiscation of Proceeds of Crimes Act 1989 (Cth)
Criminal Appeal Act 1912, s 17
Evidence Act 1995, s 140
Mining Act 1992
New South Wales Act 1823 (Imp) (4 Geo IV c 96)
Supreme Court Act 1933 (ACT), s 23
Supreme Court Act 1970, ss 17, 22, 23
Supreme Court Rules, Pt 75
Uniform Civil Procedure Rules 2005, rr 33.11(2), 34, Pt 33, 42
Cases Cited: A Pty Ltd v Z [2007] NSWSC 999
ASIC v Sigalla (No 6) [2012] NSWSC 83
Bimson, Roads and Maritime Services v Damorange Pty Ltd (No 2) [2014] NSWSC 827
Commissioner of Corrective Services v Liristis [2018] NSWCA 143
Darcey v Pre-Term Foundation Clinic (1983) 2 NSWLR 497
Deposit and Investment Co Ltd (receivers appointed) v Peat Marwick Mitchell & Co (1996) 39 NSWLR 267
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
Director of Public Prosecutions v Deeks (1994) 34 NSWLR 523
Director General Department of Community Services v Houdek [1999] NSWSC 1031
Frontier Assets Pty Ltd v Fishburn [2011] NSWSC 334
J Aron Corporation v Newmont Yandal Operations [2004] NSWSC 996
Keramianakis v Regional Publishers Pty Ltd (2009) 237 CLR 268; [2009] HCA 18

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 Regina v Obeid

Details

AGLC: Regina v Obeid [2018] NSWSC 1024
Case: [2018] NSWSC 1024
Decision Date: 05 July 2018

CaseChat Overview and Summary

The case of Regina v Obeid involved criminal proceedings where the accused, Obeid, issued a subpoena to a third party seeking documents. The subpoena was drafted broadly without specifying the forensic purpose of the documents sought. Consequently, the subpoena was set aside by consent. The third party, seeking reimbursement for the costs incurred in setting aside and complying with the subpoena, filed an application for costs against Obeid. The central legal issue was whether the Supreme Court had the power to order costs against the accused in relation to the subpoena, specifically in circumstances where the application to set aside the subpoena was not considered a "civil proceeding." Additionally, the court had to determine if the inherent powers of the Court enabled a costs order to be made even if the Supreme Court rules did not provide for it.

The court examined whether the application to set aside the subpoena qualified as a "civil proceeding" under UCPR 34.11, and if "other relief" included costs. It concluded that the application did not constitute a civil proceeding, and therefore, the Supreme Court did not have the power to award costs associated with setting the subpoena aside. However, the court assessed the costs incurred in complying with the subpoena and made an order for payment with interest. This order was stayed until the conclusion of the trial to avoid any prejudice to Obeid's case. The court's decision highlighted the limitations of the Supreme Court's power in awarding costs in such circumstances while still addressing the reasonable costs incurred by the third party.

Orders