Stanizzo v Badarne
[2019] NSWSC 74
•20 February 2019
Supreme Court
New South Wales
Medium Neutral Citation: Stanizzo v Badarne [2019] NSWSC 74 Hearing dates: 7 February 2019 Date of orders: 20 February 2019 Decision date: 20 February 2019 Jurisdiction: Common Law Before: Harrison J Decision: See body of judgment
Catchwords: PROCEDURE – civil procedure – where plaintiff claims damages for malicious prosecution – where plaintiff and defendant have issued subpoenas to third parties – whether subpoenas have legitimate forensic purpose Category: Procedural and other rulings Parties: Vincent Francis Stanizzo (Plaintiff)
Muhammad Badarne (Defendant)Representation: Counsel:
C Waterstreet and M Rollinson (V Stanizzo)
A Macauley (M Badarne)
File Number(s): 2014/92425 Publication restriction: Nil
Judgment
-
HIS HONOUR: Mr Stanizzo and Mr Badarne have issued various subpoenas to third parties. Objection is taken to these subpoenas upon the basis that they lack any legitimate forensic purpose. These reasons deal with that issue.
Subpoena to Commissioner of Police
-
Mr Badarne issued a subpoena on 16 May 2018 directed to the Commissioner of New South Wales Police seeking production of the following documents:
“1. All documents (including electronic communications) at any time recording, evidencing or referring to:
(a) Any charges laid against Vincent Francis Stanizzo … other than charges in H 42189370 and all facts sheets in relation to such charges.
(b) Any statements made in relation to any such charges laid against Vincent Francis Stanizzo … other than statements made in relation to charges within H 42189370.
(c) Any Application for Apprehended Violence Order made by any person against Vincent Francis Stanizzo … and all statements made in support of such applications.
(d) Any Application for Apprehended Violence Order made by Akram Stanizzo or Senior Constable Daniel Frazer for the protection of Akram Stanizzo or any other person.
(e) All COPS entries created by the NSW police in relation to Vincent Francis Stanizzo…”.
-
Mr Stanizzo asks that this subpoena be set aside upon the basis that it seeks documents that can have no relevance to any issue in the proceedings and therefore lacks any discernible or legitimate forensic purpose.
-
Mr Stanizzo has sued Mr Badarne alleging that he maliciously commenced and maintained proceedings against him without reasonable or probable cause. Those proceedings were criminal proceedings in which Mr Stanizzo was charged with four counts of intimidation of Mr Badarne. The proceedings were terminated and a nolle prosequi entered.
-
In my opinion, the subpoena seeks documents that can have no relevance in these proceedings. Mr Badarne has not filed a tendency or coincidence notice which might potentially have raised some basis upon which the material could be relevant. That apart, there is no legitimate basis for the receipt of any of this material in these proceedings. Mr Stanizzo’s criminal history is unrelated to any issue concerned with the determination of whether or not Mr Badarne maliciously prosecuted him as he alleges. The subpoena should be set aside.
-
Mr Badarne observes that Mr Stanizzo’s original objection to this subpoena by notice of motion filed on 5 June 2018 was withdrawn by him. Two things can be said about that. First, that withdrawal does not raise any estoppel against Mr Stanizzo and he is entitled to revive his objection to the subpoena before me. Secondly, the fact that the subpoena seeks documents that are so far outside the parameters of this case should in any event inform its ultimate fate.
Subpoena to Department of Home Affairs
-
Mr Stanizzo issued a subpoena on 7 May 2018 directed to the Department of Home Affairs seeking the following documents:
“All records, including records relating to applications for and grant or refusal of a passport, permanent residency status, visa or other travel document, and international travel (arrival or departure) records, correspondence and electronic data in relation to each of the following persons:
1. Ahmad Badarne, also known as Ahmad Abou Ria …
2. Muhammad Badarne, also known as Badarne Badarne…
3. Rowan Badarne, also known as Rown Badarne…”.
-
The basis upon which Mr Stanizzo contends that this material has a legitimate forensic purpose is contained in Mr Stanizzo’s affidavit sworn 1 June 2018. In very brief summary, Mr Stanizzo challenges the authenticity of certain transactions between Mr Badarne and third parties that contain references to travel between Australia and Israel. Additionally, Mr Stanizzo refers in his affidavit to Mr Badarne’s evidentiary statement in which Mr Badarne gives an account of him and his wife and children travelling between Israel and Australia from 1990 up until the present. Mr Stanizzo contends that the documents that are sought are relevant to Mr Badarne’s credibility regarding the issue of whether or not he misappropriated the sum of $220,000 and the permanence or otherwise of Mr Badarne’s residence in Australia.
-
Doing the best I can, I have considerable difficulty seeing that the department’s records have any possible connection to the issues at large in these proceedings. I note that the documents relating to Ahmad Abou Ria are not objected to by Mr Badarne but the balance of them remains in contest. I have difficulty understanding how the immigration records of Mr Badarne or his wife can have any relevance in the proceedings at all. They are in addition presumably only directed to Mr Stanizzo’s case in reply, if any. Having regard to the fact that Mr Badarne may well lead no evidence at all, the legitimacy of Mr Stanizzo’s forensic purpose seems to be even more doubtful. I do not in the circumstances consider that Mr Stanizzo should be given access to these documents. I will not, however, at this stage set aside the subpoena against the contingency that some firmer foundation for the use of the documents might possibly emerge as these cases progress.
Subpoena to University of Wollongong
-
Mr Stanizzo has also issued a subpoena on 25 July 2018 directed to the University of Wollongong seeking the production of the following documents:
“In relation to Muhammad Badarne aka Badarne Badarne, all documents recording the following:
1. All courses or subjects in which M. Badarne has performed work as a lecturer or tutor in the period 1 January 2004 to 31 December 2013.
2. Any salary, wages or other payments made to M. Badarne in the period 1 January 2004 to 31 December 2013.
In relation to M. Badarne and to Rowan Badarne, all documents recording:
3. Any enrolment or course fees paid by either or both of them in the period 1 January 2006 to 31 August 2009.”
-
Part of what I understand Mr Stanizzo will wish to contend in his case against Mr Badarne is that Mr Badarne was involved in a relatively substantial transaction that was in truth a sham or otherwise not genuine and that his obligations under the agreement were to be met from funds coming to him from an illegitimate source. One of those obligations would appear to relate to a sum of $220,000 referred to earlier. Mr Stanizzo wishes to have the employment and other records from the university in order to establish that Mr Badarne, who was at one time working there as a lecturer or tutor, could not have been earning sufficient funds to enable him to have paid that sum from his own resources.
-
Mr Stanizzo deposes to some of these matters in his affidavit sworn on 29 August 2018 in the following relevant terms:
“(1) My case against Badarne is that he instigated the bringing and maintenance of the prosecution against me by the police and the DPP, by making false allegations of criminal conduct by me. His motives included a desire for retribution because I had lodged a complaint to the Legal Services Commissioner (OLSC) immediately after I sacked him in August 2009, after he had given different explanations, none of which were [sic, was] credible, in connection with a total sum of $220,000, which was received into my solicitor’s practice trust account in 2007 and used by him for the purpose of purchasing his house. These payments into my trust account were misrepresented to me by Badarne as a loan to him from one Michael Ayoub, when in fact it became clear later that they were payments on account of legal fees that Ayoub had incurred for services rendered by Badarne while he worked within my firm on a fee-sharing arrangement with me, which is described in paragraph 10 of my Evidentiary Statement dated 5 June 2017…
(2) As regards Badarne’s income, my Evidentiary Statement in this matter details…that in the period that he worked in my firm from late January 2006 until 24 August 2009 when I finally sacked him (I had first sacked him on 14 May 2009 but allowed him to return to the office merely to complete work on pending matters). Badarne’s income generated from working on his own matters under the arrangement referred to above was:
Period to 30 June 2006 $ 4,266.66
Year ended 30 June 2007 $10,960.00
Year ended 30 June 2008 $ 9,643.50
Total $24,870.16
which was an average of less than $200 per week.
(3) Badarne had a dependent wife who was studying at the University of Wollongong and two dependent children. Badarne had told me the following:
(i) Before purchasing and moving into the house in August 2007, he had been paying about $300 per week in rent.
(ii) After purchase of the house he had to make mortgage repayments of about $1,200 to $1,400 per month.
(iii) Badarne was paying $100 per day for child care for his two children, then under school age.
(iv) Badarne and his wife were running two cars, one of which, a Toyota Camry, Badarne purchased at this time.
(v) Badarne also purchased a tractor, and was doing substantial renovations to the house he had purchased.
(vi) Council rates on the house would have been about $2,000 pa.
(vii) Water rates about $400 per quarter.
(viii) Electricity charges about $400 per quarter.
(ix) Badarne had to meet also grocery and other usual expenses of a household of four persons.
(x) At the end of 2006, Badarne and his family travelled to Israel for a month where, he said, his father was dying.
These facts made it unlikely that he could have maintained his family and in addition have borrowed $220,000 unsecured from a third party to purchase his house (as well as $180,000 secured on the house from me), unless he had a substantial source of income undisclosed to me.
(4) I strongly believe that while working within my firm Badarne had been repeatedly receiving money from his clients in contravention of the fee-sharing arrangement between us and without issuing invoices or receipts.”
-
More recently, in a letter dated 23 August 2018 written by Mr Rollinson of counsel for Mr Stanizzo to Mr Badarne, Mr Rollinson asserted that the forensic purpose of the University of Wollongong material was “very clear” and indicated that “the documents sought are relevant to credit”. I take that reference to convey the contention that Mr Badarne could not have provided the expended monies from his known sources of income.
-
However, the assessment of whether Mr Badarne’s credit becomes an issue in these proceedings is uncontroversially linked to the question of whether or not he gives evidence. As I have already indicated above, as well as in several other contexts in the course of the proceedings, there must remain some considerable doubt about whether Mr Badarne does so. The fact that he has provided a statement of evidence to Mr Stanizzo in anticipation of giving evidence does not foreclose that issue.
-
I am not presently satisfied that there is an identified or legitimate forensic purpose for the subpoena issued to the university. It may well be, depending upon what evidence is led by any of the parties, that the question becomes clearer at some point as these proceedings continue. The question of the forensic purpose of this subpoena can be revisited at that time if it seems appropriate.
**********
Decision last updated: 16 May 2019
1
0
0