Supreme Court New South Wales Medium Neutral Citation: Thaler v Amzalak [2013] NSWSC 1155 Hearing dates: 8 April 2013 Decision date: 08 April 2013 Jurisdiction: Common Law Before: Schmidt J Decision: Motion dismissed with costs in favour of Mr Amzalak, as agreed or assessed. Catchwords: PROCEDURE - subpoena - notice of motion - order seeking subpoena for production to be set aside - orders sought refused - costs Category: Interlocutory applications Parties: Shlomo Thaler (Plaintiff) Benjamin Amzalak (also known as Binyomin Zeev Amzalak) (Defendant) Representation: Counsel: Mr M S White with Mr P Afshar (Plaintiff) Mr G Segal with Mr M A Friedgut (Defendant) Solicitors: Peter M Wayne & Associates (Plaintiff) Brown Wright Stein Lawyers (Defendant) File Number(s): 2010/361581 Publication restriction: None EX TEMPORE Judgment 1HER HONOUR: By a motion filed on 26 March 2013 the plaintiff seeks an order that a subpoena addressed to Rabbi Lieb Aber seeking production of his passport be set aside. The motion is supported by an affidavit sworn by Peter Martin Wayne, the plaintiff's solicitor. Rabbi Aber is the neighbour of Mr Koncepolski, the plaintiff's attorney. 2The plaintiff's case is that no allegation has been raised on the pleadings or otherwise regarding Rabbi Aber and that prima facie his passport has no apparent relevance to the issues before the Court. 3At the hearing this morning the relevance of the passport has been identified for the defendant by reference to a document marked MFI 7 on the last occasion, 1 March. That is a document signed on its face by the plaintiff, Mr Thaler, and witnessed by Rabbi Aber on 6 February 2007. It relates to a bank account about which some evidence has been received from Mr Amzalak, the defendant. MFI 7 was sought to be tendered by the plaintiff at the end of the proceedings on the last occasion. The tender was stood over so that the defendant, could have an opportunity to consider the document, it being one which had not earlier been provided to him. The subpoena is directed to that document and its authenticity. 4At the hearing this morning it was said for Mr Thaler that the issue could be resolved on the basis that MFI 7 would not be tendered. That was met with the response that it would be tendered in Mr Amzalak's case. There was then a debate between the parties as to whether or not the document had any relevance to anything which has to be determined in these proceedings, given that it is not the underpinning facts which were dealt with in the arbitration which arises for consideration in these proceedings, but rather the matters raised by the summons and Mr Amzalak's cross-claim, as to alleged misconduct on the part of the arbitrators and the other matters which are there raised. 5I was taken to various aspects of the evidence given by Mr Amzalak in cross-examination to support the submission advanced for Mr Thaler that the document was not relevant nor was its authenticity. That was responded to for Mr Amzalak on the basis that the question of its authenticity was raised by both the amended cross-claim, which in para 2 disputes whether or not in fact there was an arbitration agreement entered into between Mr Amzalak and Mr Thaler and by the evidence which Mr Amzalak gave, including in relation to payments out of the account with which this document is concerned. 6Having considered all of that material I am unable to conclude that what is sought to be subpoenaed from Rabbi Aber is irrelevant to what I have to determine in these proceedings, given the issues raised in the proceedings and the factual matters in contest. 7Accordingly, the orders sought in the motion must be refused. The usual order as to costs would be an order in favour of Mr Amzalak. That will be the Court's order, unless the parties wish to address on that question? 8SEGAL: I don't. 9HER HONOUR: I order that the motion be dismissed with costs in favour of Mr Amzalak, as agreed or assessed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 August 2013