Zreika v El Haddad - [2017] NSWDC 415

District Court

New South Wales

Medium Neutral Citation: Zreika v El Haddad [2017] NSWDC 415
Hearing dates: 5 May 2017
Date of orders: 05 May 2017
Decision date: 05 May 2017
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1)   Set aside the subpoena to Optus Mobile Pty Ltd filed 29 March 2017.
(2)   The second defendant pay the plaintiff’s costs of the notice of motion.
(3)   The plaintiff's application for an indemnity costs order paid forthwith is refused.

Catchwords: CIVIL PROCEDURE — subpoenas — application to set aside – legitimate forensic purpose – indemnity costs
Legislation Cited: Motor Accidents Compensation Act 1999, s 119
Cases Cited: ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307
Lowery v Insurance Australia Ltd [2015] NSWCA 303
North Shore Real Estate Pty Ltd v Real Estate Property Management Services Pty Ltd [2017] NSWDC 44
Portal Software v Bodsworth [2005] NSWSC 1115
Category: Procedural and other rulings
Parties: Abdul Zreika (plaintiff)
Doonya El Haddad (first defendant)
Allianz Australia Insurance Limited (second defendant)
Representation:
Counsel:
Mr P A Tierney (plaintiff)
Ms S Warren (second defendant)
Solicitors:
Withstand Lawyers (plaintiff)
McInnes Wilson (second defendant)

File Number(s): 2016/330294
Publication restriction: None

Judgment

INTRODUCTION

Abdul Zreika sues Doonya El Haddad for damages arising out of a motor vehicle accident. Ms El Haddad's insurer, on its application, was previously joined to the proceedings. It issued a subpoena to Optus Mobile Pty Ltd seeking the mobile phone records of Mr Zreika showing incoming and outgoing calls and texts for the two weeks surrounding the date of the accident. Mr Zreika seeks to set aside the subpoena.

THE ISSUE

The sole issue on the application is whether there is a legitimate forensic purpose in the issue of the subpoena.

BACKGROUND

After being given notice of the claim, the insurer acting for Ms El Haddad admitted liability. However, for reasons not revealed on this application, it withdrew or purported to withdraw that admission. Mr Zreika commenced proceedings.
Under s 119 of the Motor Accidents Compensation Act 1999, the insurer may apply to be joined as a party if the insurer "has given the plaintiff particulars alleging that the claim has not been made in good faith". The insurer successfully applied under s 119 and became the second defendant. I asked the insurer whether the particulars requirement in s 119 had been satisfied and whether I could see the particulars. The insurer identified a document in evidence that it said constituted the particulars. The document read as follows:

"18 February 2016
…
As a result of information received since notice was given under Section 81 of admission of liability, we allege that the claim falls within Clause 8.11.6 of the Claims Assessment Guidelines, namely that it is a claim which is fraudulent in terms of the circumstances of the accident giving rise to the claim.
We allege that the accident was staged by your client for purposes of financial gain. Any proceedings which are commenced…

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.

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Details

Case: [2017] NSWDC 415
Decision Date: 05 May 2017

CaseChat Overview and Summary

The case of Zreika v El Haddad involved the applicant seeking to set aside a subpoena issued to Optus Mobile Pty Ltd. The subpoena had been issued in the context of ongoing litigation between the parties, with the applicant contending that the subpoena did not serve a legitimate forensic purpose. The matter was heard in the Supreme Court of New South Wales. The legal issues before the court centred on whether the subpoena was issued for a legitimate forensic purpose and, if not, whether the applicant should be granted an order for indemnity costs.

The court examined the purpose behind the subpoena and found that it did not serve a legitimate forensic purpose. The court reasoned that the information sought was not necessary for the determination of the issues in the proceeding, and the subpoena was therefore improperly issued. As a result, the court set aside the subpoena. The court also considered the applicant's request for an indemnity costs order, which would require the second defendant to pay the applicant's costs forthwith. However, the court declined to grant this order, finding that the circumstances did not warrant such an outcome. The court did order that the second defendant pay the applicant's costs of the notice of motion.

In summary, the court set aside the subpoena to Optus Mobile Pty Ltd, ordered the second defendant to pay the plaintiff's costs of the notice of motion, and refused the plaintiff's application for an indemnity costs order.

Orders

Orders of the court

(1) Set aside the subpoena to Optus Mobile Pty Ltd filed 29 March 2017.

(2) The second defendant pay the plaintiff’s costs of the notice of motion.

(3) The plaintiff's application for an indemnity costs order paid forthwith is refused.

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.

Medium Neutral Citation:	Zreika v El Haddad [2017] NSWDC 415
Hearing dates:	5 May 2017
Date of orders:	05 May 2017
Decision date:	05 May 2017
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Set aside the subpoena to Optus Mobile Pty Ltd filed 29 March 2017. (2) The second defendant pay the plaintiff’s costs of the notice of motion. (3) The plaintiff's application for an indemnity costs order paid forthwith is refused.
Catchwords:	CIVIL PROCEDURE — subpoenas — application to set aside – legitimate forensic purpose – indemnity costs
Legislation Cited:	Motor Accidents Compensation Act 1999, s 119
Cases Cited:	ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 Lowery v Insurance Australia Ltd [2015] NSWCA 303 North Shore Real Estate Pty Ltd v Real Estate Property Management Services Pty Ltd [2017] NSWDC 44 Portal Software v Bodsworth [2005] NSWSC 1115
Category:	Procedural and other rulings
Parties:	Abdul Zreika (plaintiff) Doonya El Haddad (first defendant) Allianz Australia Insurance Limited (second defendant)
Representation:	Counsel: Mr P A Tierney (plaintiff) Ms S Warren (second defendant) Solicitors: Withstand Lawyers (plaintiff) McInnes Wilson (second defendant)
File Number(s):	2016/330294
Publication restriction:	None