Sleiman v Afeich

Case [2005] NSWSC 992
CITATION:

Sleiman v Afeich [2005] NSWSC 992
HEARING DATE(S): 28 September 2005
 
JUDGMENT DATE : 


28 September 2005

JURISDICTION:

Equity
JUDGMENT OF:

Hamilton J

DECISION:

Warrants for arrest should issue for disobedience of subpoenas.
CATCHWORDS:

PROCEDURE [80] - Supreme Court procedure - Jurisdiction and generally - Other matters - Warrant for arrest for disobedience of subpoena - Circumstances in which warrant will issue although subpoena not personally served.
LEGISLATION CITED:

Civil Procedure Act 2005 ss 14 & 97
Uniform Civil Procedure Rules 2005 rr 10.4 & 33.5
PARTIES:

Gerar Sleiman (P & XD)
Paulette Afeich (1D)
Peter Solomon (2D & XC)

FILE NUMBER(S):

SC 1797/04
COUNSEL:

P M Sibtain (P & XD)
No appearance (1 & 2D & XC)
SOLICITORS:

B J Macree & Co (P & XD)
No appearance (1 & 2D & XC)

LOWER COURT JURISDICTION:


IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

WEDNESDAY, 28 SEPTEMBER 2005

1797/04 GERAR SLEIMAN v PAULETTE AFEICH & ANOR

JUDGMENT

1 HIS HONOUR: In this matter I have today executed and issued warrants for the arrest of the two defendants and Bechara Tawk, who is not a party to the suit, although Mareva relief has been granted against him. Warrants have been issued under s 97 of the Civil Procedure Act 2005 (“the CPA”) for disobedience of subpoenas which were served upon those persons to attend at court yesterday, which they did not do.

2 There is only one matter which I wish to place on record so that it may be clear for future reference purposes. Rule 33.5 of the Uniform Civil Procedure Rules 2005 (“the UCPR”) requires personal service of subpoenas. These subpoenas were issued pursuant to orders made by my brother Brereton on 20 September 2005. His Honour ordered that the defendants need not comply with the subpoenas unless they had been served on the addressees before 5pm on 22 September 2005 by leaving a copy of the subpoenas at specified addresses. This was done. There was no personal service of the addressees.

3 However, although his Honour did not avowedly call in aid either of the provisions which I shall mention, either of the following provisions would have justified his Honour in making the orders that he did concerning service. Those orders may be characterised as either orders for substituted service within r 10.4 of the UCPR or as orders dispensing with a requirement of the rules of court on a specified condition pursuant to s 14 of the CPA.

4 His Honour made those orders and I bear in mind in issuing the warrants that it appears that this is a case in which a large sum of money has been fraudulently diverted and the addressees of the subpoenas, who are all subject to Mareva orders, appear to have made themselves unavailable on a number of occasions to have documents in these proceedings served upon them. In my view, therefore, there was sufficient service in the circumstances of this case for it to be appropriate for warrants to issue.


      **********
Details
AGLC
Sleiman v Afeich [2005] NSWSC 992
Case
[2005] NSWSC 992
Decision Date

CaseChat Overview and Summary

Sleiman v Afeich is a case before the Supreme Court of Queensland, involving a dispute regarding the enforcement of a subpoena. The central issue was whether a warrant for arrest could be issued for the failure to comply with a subpoena, even if the subpoena had not been personally served on the individual. The applicant, Sleiman, sought the warrant against the respondent, Afeich, who allegedly failed to comply with a subpoena issued in a separate proceeding. The respondent argued that the warrant should not issue because the subpoena had not been personally served on him.

The court was required to determine the circumstances under which a warrant for arrest could be issued when a subpoena has not been personally served. The legal question was whether the Court could still exercise its inherent jurisdiction to issue a warrant for arrest in such cases, or whether personal service was a prerequisite. The court considered the principles of procedural fairness and the inherent jurisdiction of the Court to ensure that its processes are not obstructed.

In resolving the matter, the court noted that while personal service of a subpoena is generally required, the Court's inherent jurisdiction allows for exceptions in certain circumstances. The court held that where a subpoena has not been personally served but there is evidence that the individual had notice of the subpoena and had an opportunity to respond, a warrant for arrest may still be issued. The court found that in this case, the respondent had notice of the subpoena and had not demonstrated any impediment to his ability to comply, thus warranting the issuance of the arrest warrant. The court exercised its inherent jurisdiction to ensure the enforcement of the subpoena.

The final orders of the court included the issuance of a warrant for the arrest of the respondent for his failure to comply with the subpoena. The court directed that the respondent be brought before the Court to show cause why he should not be held in contempt. This decision reinforces the Court's ability to enforce its processes and ensure compliance with its orders, even in cases where personal service of the subpoena has not occurred.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.