Sahore v Ahmad
[2021] ACTSC 30
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Sahore v Ahmad |
Citation: | [2021] ACTSC 30 |
Hearing Date: | 19 February 2021 |
DecisionDate: | 19 February 2021 |
Reasons Date: | 23 February 2021 |
Before: | McWilliam AsJ |
Decision: | See [27], [41] |
Catchwords: | PRACTICE AND PROCEDURE – SUBPOENAS – Application to set aside subpoenas – whether legitimate forensic purpose |
Legislation Cited: | Court Procedures Rules (2006) (ACT) rr 447, 6601A, 6604 |
Cases Cited: | Alister v R (1984) 154 CLR 404 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 |
Parties: | Honey Sahore (Plaintiff) Waqar Ahmad (Defendant) |
Representation: | Counsel Self-Represented (Plaintiff) J Keys (Defendant) Solicitors Self-Represented (Plaintiff) |
File Number: | SC 325 of 2018 |
McWilliam AsJ:
On 19 February 2021, I made orders setting aside two subpoenas which the defendant had issued to ACT Policing and the Australian Financial Complaints Authority (the Authority). At the time the orders were made, I indicated reasons would be provided at a later date. These reasons explain why the orders were made.
The parties are involved in litigation arising out of an alleged business partnership; the business being the wrecking of European manufactured cars and the sale of their parts.
By Statement of Claim first filed on 5 July 2018, the plaintiff alleges breaches of a partnership agreement, unlawful sale of car owned by him, and reasonable remuneration for work he says he performed, with the various sums of money claimed amounting to approximately $100,000 plus costs and interest.
In December 2020, the defendant issued a number of subpoenas. On 9 February 2021, the plaintiff filed an application in proceedings seeking, among other things, to have three of those subpoenas set aside. To the extent that the application dealt with other matters, these were addressed on 12 February 2021 when the application first came before the Court. It is unnecessary to deal with them again in these reasons.
The application was then adjourned part-heard to 19 February 2021, as the defendant had not been given sufficient time to properly consider, and file evidence regarding, the complaints about the three subpoenas issued.
The subpoenas under challenge
The three subpoenas the subject of the application were all issued with the Court’s leave, which was required because the Court has not yet set a date for hearing: see r 6601A(2) of the Court Procedures Rules (2006) (the Rules).
The first subpoena, issued to ACT Policing, seeks production of the following documents:
1.Copies of any and all complaints made by Honey Sahore about or related either directly or indirectly to Waqar Ahmad during the period from January 2015 until the present time, including but not limited –
(a) electronic recordings of complaints made by telephone or transcript thereof
(b) notes, incident reports etc made about oral complaints
(c) correspondence including emails, SMS text messages etc
2.Copies of any and all reports, statements, correspondence, records of interviews and/ or outcomes etc arising from or in any way connected with or consequential upon any and all complaints described in 1 above.
The plaintiff’s complaint is that the first subpoena has no legitimate forensic purpose.
The second subpoena, issued to the Authority, seeks production of the following documents:
Copies of all documents concerning the complaint made by Honey Sahore to the Financial Ombudsman Service ref 469575, including but not limited to –
(a) a record of the complaint, including electronic material or notes of telephone call/s etc;
(b) the ‘FOS Preliminary View’ dated 9 May 2017;
(c) copies of all correspondence and/ or communications (including electronic communications) with the complainant, the Commonwealth Bank or any other person/s or organisation/s concerning the complaint or its resolution.
The reference to the Financial Ombudsman Service is the name by which the Authority was previously known. Again, the plaintiff objects to the subpoena on the ground that it lacks a legitimate forensic purpose.
A third subpoena was issued to McInnes Wilson Lawyers, a law firm formerly instructed by the Plaintiff in these proceedings. The plaintiff originally sought to set aside that subpoena for two reasons. First, no conduct money has yet been paid by the defendant. Second, the defendant has not yet agreed to meet the reasonable expenses of production, for which the subpoenaed party claims more than $5,000.
However, during the hearing, the plaintiff, who is now self-represented, informed the Court that if the defendant paid the conduct money and the subpoenaed party’s expenses of production, he would not press the application to set aside that third subpoena.
The defendant has in turn indicated that he may be in a position to limit the scope of the documents sought in order to reduce the costs of production, and an opportunity was then given to the defendant’s legal representative, Ms Keys, to communicate with the subpoenaed party in an attempt to resolve the issue. Accordingly, that aspect of the application was deferred.
The Court’s power and applicable principles
The Court has power to set aside a subpoena, in whole or in part, on application of a party, pursuant to r 6604 of the Rules.
The applicable principles have been discussed on numerous occasions. They are set out below again here as one of the parties was self-represented and the submissions of the legal representative for the defendant went beyond what I considered to be the established principles.
Relevant to the present application, one of the reasons why a subpoena will be set aside is if the subpoena lacks a legitimate forensic purpose (including a lack of apparent or adjectival relevance).
The test for relevance is less stringent than that which applies in the context of admissibility of evidence at trial: Gloucester Shire Council v Fitch Ratings [2016] FCA 587 (Gloucester Shire Council) per Wigney J at [23], in the context of a relatively recent discussion of the established authorities which have been applied in this Court (see [20] of these reasons below).
Informing the principle is the public interest in a fair trial, which should be conducted on the footing that all relevant documentary evidence is available, subject to other public interest considerations, such as legal professional privilege: see Grant v Downs (1976) 135 CLR 674 at 685, cited in Gloucester Shire Council at [24].
Accordingly, the approach a Court takes in determining whether the documents sought under subpoena have apparent relevance is broad rather than narrow. The Court should not too readily exclude the possibility that a document or class of documents might at the end of the day be relevant to a fact in issue in the litigation: Gloucester Shire Council at [23]. I have emphasised those words to highlight the low threshold for apparent relevance.
There are various descriptions among the authorities of the question for the Court. These include whether the documents could ‘possibly throw light on the issues in the main case’ (being the language used by Beaumont J in Trade Practices Commission v Arnotts (1989) 88 ALR 90 at 103), and whether it is ‘on the cards’ that the documents sought will materially assist the party at whose request the subpoena has been issued: Alister v R (1984) 154 CLR 404 (Alister) at 414; Portal Software v Bodsworth [2005] NSWSC 1115 (Portal Software) at [24]. See also DPP v Warren [2015] ACTSC 111 at [22] and Elmaraazey v Capital Lawyers Pty Ltd [2016] ACTSC 54 at [44], where Mossop AsJ (as his Honour then was) cited in addition Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 926–927 and Re North Coast Transit Pty Limited [2013] NSWSC 1912 at [7]–[9].
A mere ‘fishing’ expedition is impermissible. That is, a party cannot seek documents in an attempt to discover if the issuing party has a case (hence the fishing metaphor of casting a wide net to see what is caught). It can only seek documents to support a case that has already been articulated: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575.
The party issuing the subpoena bears at least a forensic onus of showing the relevance of the documents sought to the issues in the proceedings: see Portal Software at [29] and the cases there-cited.
Should the subpoena to ACT Policing be set aside?
On its face, the subpoena to ACT Policing had no bearing on any issue to be litigated between the parties. In affidavit evidence relied upon to explain the justification for the subpoena, the defendant deposes as follows:
I agree that ACT Policing “has nothing to do with” the Statement of Claim. But that does not appear to stop the Plaintiff from making allegations of fraud and/or intimidation in affidavits/court documents and saying he has reported these matters to the police. …
The affidavit then proceeded to list a number of items as examples of the allegations. These included allegations of fraud and intimidation made in correspondence, in the contents of affidavits filed with the Court, and in conversations the defendant has apparently had with third parties, which had been relayed to the defendant.
At the time, the plaintiff had not filed any application regarding contempt on the part of the defendant, nor had he asserted any issue in the main case that will somehow be supported or otherwise informed by his dealings with ACT Policing. Accordingly, there was no articulated ‘issue’ on which documents produced by ACT Policing might possibly throw light. Contrary to the submission of the defendant, the mere reference to a complaint made to ACT Policing well after proceedings were commenced is not sufficient to justify the issuing of a subpoena. The circumstances of the reference were as part of an affidavit made regarding interlocutory matters, by a person without legal training.
This is not to say that, as a general proposition, the contents of an interlocutory affidavit might not also be relevant (either directly or indirectly) to an issue at trial. It is simply to explain that where the party who issues the subpoena relies on such material, there will usually be a need to go further. The connection between the contents of an interlocutory affidavit and how obtaining documents relevant to an interlocutory point might materially assist the party will need to be established, even if it is only to challenge credit.
That was not done in the present case. The plaintiff’s complaint to ACT Policing is a matter wholly extraneous to the issues in dispute in these proceedings. I was not satisfied that there was any connection beyond the fact that the report to police apparently involved both the plaintiff and the defendant. It is understandable that, upon reading something in an affidavit that concerned his alleged conduct and a report to police, a defendant may wish to discover what was being said about him, so that he may address it. However, that does not justify the subpoena in these proceedings. Accordingly, the subpoena to ACT Police was set aside.
Should the subpoena to the Authority be set aside?
The subpoena issued to the Authority was said to arise out of allegations contained in the plaintiff’s statement of claim, specifically paragraph 32. Reference is there made to an agreement on 16 May 2017 between the Commonwealth Bank of Australia (CBA) and the plaintiff. Paragraph 32 further pleads that following that agreement, compensation of approximately $32,000 was paid to the plaintiff. The compensation is said to relate to an earlier allegation of cheques drawn on a CBA Account without the plaintiff’s authorisation.
The agreement referred to in the pleading is contained in a written document, the title of which is ‘Resolution Agreement’. The plaintiff has discovered that document and the defendant referred to it in his affidavit.
The defendant argues that the relevance of the subpoena arises out of the Resolution Agreement, in that the document contains a reference to the CBA agreeing with “the preliminary view of the Authority” about “the plaintiff’s complaint”, which is a defined term in the Resolution Agreement.
In seeking the documents from the Authority set out at [9] above of these reasons, the defendant was seeking to understand the full nature of the complaint made to the Authority and what its “preliminary view” was. Again, there was no question of credit raised by the defendant as founding the subpoena.
The difficulty faced by the defendant was that of establishing any link between the documents sought and ‘an issue’ in the case. Having heard argument from Ms Keys, counsel for the defendant, two things remained entirely unclear to me. It was unclear how (a) knowing what the plaintiff said to the Authority, or (b) knowing what the Authority’s preliminary view about the plaintiff’s complaint was, could “materially assist” the defendant with regard to any part of the issues in the case (recalling the description used in Alister). That is, it remained unclear what the stated forensic purpose was.
Starting with paragraph 32 of the claim, the facts there pleaded are not in issue because the paragraph is admitted. The allegations in the paragraph are not traversed in the defence filed 4 April 2019, and are therefore taken as admissions: see r 447 of the Rules. Ms Keys confirmed that was the case in oral argument before the Court.
It is also not in issue that the agreement pleaded at paragraph 32 of the claim (the Resolution Agreement) was the product of a complaint made by the plaintiff to the Authority, previously known as the Financial Ombudsman Service.
Further, the plaintiff submitted that he did not seek any relief in relation to the monies which were the subject of the agreement with the CBA. The only reason for the pleading referring to the agreement with the CBA was to make it clear that the monies for which relief is claimed do not comprise any allegedly unauthorised withdrawals from a CBA bank account.
The defendant’s response was to say that the plaintiff had asked interrogatories about cheques drawn on a CBA account, which were said to have been unauthorised. The defendant had also answered those interrogatories. The same cheques about which interrogatories were asked were said to be involved in the complaint to the Authority. The implied inference from the fact that interrogatories were asked and answered appears to be that the Court must infer at least adjectival relevance.
However, again, the mere fact that something is mentioned in evidence or an interrogatory does not, of itself, give rise to an entitlement to subpoena a non-party to proceedings to divulge more information on the topic. The threshold for relevance is low, but there must still be some forensic purpose identified.
In the present case, there are three components to the plaintiff’s claim. The first is for $20,000 in liquidated damages. That claim is based on the defendant allegedly selling a van owned by the plaintiff while he was on holiday. The alleged value of the van is $20,000. This aspect of the claim is quite clearly unrelated to any matter concerning the CBA.
The second component of the plaintiff’s claim is for the return of money paid by the plaintiff in alleged contribution to the partnership business. $41,761.80 is claimed, which is said to follow if the Court orders rescission of the Partnership Agreement. As paragraph 32 of the plaintiff’s claim makes clear, no part of the money claimed relates to the cheques drawn on the CBA bank account that were the subject of the plaintiff’s complaint to the Authority.
The third component of the plaintiff’s claim is for remuneration in respect of work carried out by the plaintiff. $37,950 has been claimed, based on a rate of $25 per hour for 1,518 hours. Again, no part of the amount claimed is in any way affected by a separate complaint the plaintiff made to the Authority about the CBA.
Accordingly, I was not satisfied that the subpoena to the Authority had any legitimate forensic purpose and the subpoena was set aside.
Conclusion
The orders supported by these reasons have already been made.
I will hear the parties as to costs of the application once the issue concerning the subpoena to McInnes Wilson Lawyers is resolved.
| I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam Associate: Date: |
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