Foundas v Arambatzis [2023] NSWSC 1225

Supreme Court New South Wales

Medium Neutral Citation: Foundas v Arambatzis [2023] NSWSC 1225 Hearing dates: On the papers Date of orders: 13 October 2023 Decision date: 13 October 2023 Jurisdiction: Equity - Real Property List Before: Rees J Decision: Leave to issue subpoena Catchwords: SUBPOENA – litigant in person – leave to issue subpoenas – r7.3, UCPR. Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 7.3 Cases Cited: Hamzy v Commissioner of Corrective Services (No 1) [2017] NSW 183 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Category: Procedural rulings Parties: Cassiani Foundas (Plaintiff) Peter Arambatzis (First Defendant) Sean Wengel (Second Defendant) Robert Whitton (Third Defendant) Representation: Counsel: Mr D Barlin / Ms T Harris-Roxas (First Defendant)

Solicitors: Cassiani Foundas (Plaintiff) (In person) Cutri & Associates (First Defendant) William Robert Lawyers (Second and Third Defendants) File Number(s): 2021/297960

JUDGMENT 1. HER HONOUR: The plaintiff, Cassiani Foundas, seeks leave to issue subpoena. Ms Foundas is unrepresented and, as such, requires the leave of the Court to do so: Uniform Civil Procedure Rules 2005 (NSW), rule 7.3. 2. The principles concerning a grant of leave were explained by Bellew J in Hamzy v Commissioner of Corrective Services (No 1) [2017] NSW 183 at [5]-[6]: (citations omitted) Put simply, leave should not be given unless there is a good reason to do so. Some proper purpose for the issue of the subpoena must be established, bearing in mind that subpoenas are important steps in the litigious process. In considering a grant of leave, I must have regard to the various grounds on which a subpoena may be set aside. Those grounds include that a subpoena is oppressive, irrelevant, an abuse of process of the Court, or amounts to a fishing expedition. An overriding consideration in determining whether leave should be granted is that the party who seeks leave bears the onus of demonstrating that the subpoena has a legitimate forensic purpose. Whether such a purpose is demonstrated is a determination which must be made having regard to the issues in the proceedings. 1. It will generally be sufficient and prima facie evidence of a legitimate forensic purpose if the documents sought to be produced on subpoena have an apparent relevance to the issues in the case or bear upon the cross examination of witnesses expected to be called in the proceedings: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [80] (per Bell P, as the Chief Justice then was). 2. The plaintiff seeks leave to issue subpoena to forensic document examiner, Melanie Holt, and to the first defendant, Peter Arambatzis. Whilst both proposed subpoena are in the form of a subpoena to attend to give evidence and to produce documents, I understand that it is documents which the plaintiff seeks. 3. In considering the application for leave, I have been assisted by the plaintiff's written submissions and those of the first defendant's counsel. The main objection to the scope of the subpoena is that the documents sought are said to be irrelevant to an issue in the proceedings. As such, I have also reviewed the pleadings. A key issue in these proceedings is whether a Deed of Acknowledgement dated 3 December 2013 is genuine or a forgery. The plaintiff contends that the deed is genuine and has the consequence that the first defendant thereby acknowledged that he had no interest in two properties, while the first defendant says the document is a forgery.