Subota v Boskovic
[2013] NSWDC 259
•07 August 2013
District Court
New South Wales
Medium Neutral Citation: Subota v Boskovic [2013] NSWDC 259 Hearing dates: 7 August 2013 Decision date: 07 August 2013 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Defendant's application regarding National Australia Bank's compliance with subpoena refused.
Catchwords: SUBPOENA - production of documents from third party - seeking orders for compliance - copies rather than original documents produced - documents produced to counsel rather than to the court Legislation Cited: Uniform Civil Procedure Rules 2005, r 33.6 Category: Interlocutory applications Parties: Branko Subota (plaintiff)
Ivan Boskovic (defendant)Representation: Mr P Menadue (plaintiff)
Mr R Jefferis (defendant)
Sean Wilkins & Company (plaintiff)
Harbourside Legal Services Pty Ltd (defendant)
File Number(s): 2012/231613 Publication restriction: No
ex tempore Judgment
This matter involves an investment between the plaintiff and the defendant that is alleged to have produced losses. The plaintiff seeks that the defendant pay his share of the losses. The defendant resists liability on a number of bases, not all of which appear in his defence.
The defendant applies for an order compelling the representative or officer of the National Australia Bank ("NAB") to attend and explain why they have not met the obligation to comply with a subpoena.
The evidence on the application comprised the subpoena and two letters as well as some oral evidence from Mr Cassim, solicitor for the defendant. That evidence reveals that the subpoena was issued on 19 June and served by ordinary post on 20 June 2013. There was no production in accordance with that subpoena so a further letter was sent on 17 July 2013, and there was also no production on 19 July 2013 when Mr Cassim attended the registry.
On that day or the following day, Mr Cassim, telephoned the NAB and eventually was requested to forward a copy of the subpoena by email, and gave evidence that an email was sent although the contents of that email were not in evidence. Subsequently, a number of documents were forwarded to counsel for the defendant. I infer that those documents were forwarded to counsel for the defendant as a result of either the contents of the email or the phone conversation Mr Cassim had with the NAB on 19 or 20 July 2013.
Mr Cassim said he was not sure if the documents produced were all of the documents required by the subpoena, but that copies of the documents provided were sent by email to the plaintiff and that there was no further production by the NAB.
At first, the defendant had argued that the production was inadequate because there was no original of a particular guarantee produced, notwithstanding that the defendant had been provided with a copy of that guarantee. In respect of this argument, I note the provisions of Part 33, r 33.6(6) of the Uniform Civil Procedure Rules 2005 which provides that:
"(6) Unless a subpoena specifically requires the production of the original, the addressee may produce a copy of any document required to be produced by the subpoena."
The subpoena in this case does not require or call for the production of any original and therefore the absence of an original does not appear to be a proper ground of complaint.
The basis of the defendant's application is revealed by the following submissions: the defendant says that orders should be made against the NAB because "We don't know if they have fully complied with the subpoena", and also secondly, "That the documents are relevant to the plaintiff's case and should have been put forward by the plaintiff rather than the defendant."
The first submission of the defendant reveals a problem with the application. On the evidence before me, the NAB may well have informally produced all that is required by the subpoena. There is no evidence that they did not produce all the documents required.
The subpoena did not reveal counsel's address nor, unsurprisingly, did it contain any details or suggestion that counsel should be the person to whom the documents were produced. I have no details of what NAB was told, either by email or orally, by Mr Cassim (save that the conversation included a request by the NAB officer that the subpoena be forwarded by email). In those circumstances, I would infer that NAB was requested to send the documents answering the subpoena to counsel. Further, I cannot assume that the NAB was still obliged to forward all the documents to the Court. Indeed, any residual obligation to forward documents to the Court may have rested on the defendant since the NAB had forwarded to the defendant's counsel the documents to be produced to the Court.
The defendant elected not to give evidence of the conversation or tender the email. So I do not think I should draw inferences in favour of the defendant to cure any lacuna in the evidence. Further, it does not seem unusual to me that a party issuing a subpoena may, on occasion, give directions to a recipient about a subpoena (such as that the subpoena is not being called upon or that the calling upon of a subpoena might be postponed).
Nor would I conclude in the absence of detailed evidence of the email and the conversation, that the NAB should disregard instructions to forward the documents to counsel and forward them to the Court.
Accordingly, I am not satisfied that the NAB has failed to comply with the subpoena.
The second matter raised was that the documents are relevant to the plaintiff's case and should have been put forward by the plaintiff rather than the defendant. I do not see this as probative of whether orders should be made in respect of the NAB.
Accordingly, the defendant's application is dismissed.
The orders of the Court are:
(1) Defendant's application regarding National Australia Bank's compliance with subpoena refused.
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Decision last updated: 28 January 2014
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