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Sahore v Ahmad

Sahore v Ahmad

Case [2021] ACTSC 30 19 February 2021

Admissibility of Evidence

Civil Litigation & Procedure

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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 DPP v Warren [2015] ACTSC 111 Elmaraazey v Capital Lawyers Pty Ltd [2016] ACTSC 54 Gloucester Shire Council v Fitch Ratings, Inc [2016] FCA 587 Grant v Downs (1976) 135 CLR 674 Portal Software v Bodsworth [2005] NSWSC 1115 Re North Coast Transit Pty Limited [2013] NSWSC 1912 Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 Trade Practices Commission v Arnotts (1989) 88 ALR 90
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,…

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 Sahore v Ahmad

Details

AGLC: Sahore v Ahmad [2021] ACTSC 30
Case: [2021] ACTSC 30
Decision Date

CaseChat Overview and Summary

In the case of Sahore v Ahmad, the plaintiff, Honey Sahore, sought to set aside two subpoenas issued by the defendant, Waqar Ahmad. The subpoenas were issued to ACT Policing and the Australian Financial Complaints Authority (the Authority), respectively, and were challenged on the ground that they lacked a legitimate forensic purpose. The plaintiff is involved in litigation with the defendant, arising out of an alleged business partnership in the wrecking of European manufactured cars and the sale of their parts. The plaintiff has brought a claim for approximately $100,000 plus costs and interest, alleging breaches of a partnership agreement, unlawful sale of a car owned by him, and reasonable remuneration for work he claims to have performed.

The first subpoena, issued to ACT Policing, sought production of documents related to any complaints made by the plaintiff about or related to the defendant from January 2015 to the present. The plaintiff argued that the subpoena had no legitimate forensic purpose as it had no bearing on any issue to be litigated between the parties. The Court found that there was no articulated issue on which documents produced by ACT Policing might possibly throw light and set aside the subpoena.

The second subpoena, issued to the Authority, sought production of documents concerning a complaint made by the plaintiff to the Financial Ombudsman Service. The plaintiff argued that the subpoena lacked a legitimate forensic purpose as there was no clear link between the documents sought and the issues in the case. The Court found that there was no material assistance to be gained from the subpoena and set it aside.

The Court concluded that the plaintiff's complaints to ACT Policing and the Authority were matters extraneous to the issues in dispute in these proceedings. The Court emphasised the low threshold for apparent relevance but noted that a party cannot seek documents in an attempt to discover if the issuing party has a case. The Court set aside the subpoenas as they lacked a legitimate forensic purpose.

The Court will hear the parties as to costs of the application once the issue concerning the subpoena to McInnes Wilson Lawyers is resolved.

Orders