Application by Westpac Banking Corporation [2014] NSWSC 1091

Supreme Court New South Wales

Medium Neutral Citation: Application by Westpac Banking Corporation [2014] NSWSC 1091 Hearing dates: 7 August 2014 Decision date: 07 August 2014 Jurisdiction: Common Law Before: Hamill J (as Duty Judge) Decision: See orders. Catchwords: CIVIL LAW - distribution of funds deposited in court - application to strike out subpoena - no question of principle Category: Procedural and other rulings Parties: First applicant: J Charara Second applicant: L Konneh Third applicant: Cellnet Group Limited Representation: Counsel: First applicant: J Charara (In person) Second applicant: L Konneh (In person) Third applicant: C Bolger File Number(s): 2014/136052 Publication restriction: Nil

Judgment 1HAMILL J: This matter is before me today for a single issue which is to do with a subpoena and notice to produce issued on behalf of Mr Charara. The proceedings otherwise involve three discrete notices of motion by Mr Charara, Mr Konneh and Cellnet Group Limited, by which each of those parties seek certain orders in relation to the distribution of moneys deposited in court by Westpac Bank. 2The ultimate resolution of the matter is set for hearing before the Duty Judge on 13 August 2014. 3The Registrar had made certain orders in relation to the listing of the matter, the filing of evidence and the filing of submissions. Part of those orders has been complied with by the parties. Other parts have not been complied with by the parties, partially, it seems, due to a misunderstanding as to the order in which things were going to happen. 4The subpoena and notice to produce were subject to a notice of motion by Cellnet, who was a recipient to the subpoena for orders striking out the subpoena and striking out parts of the notice of motion. 5Mr Bolger, who appears today for Cellnet, and Mr Charara, who appears unrepresented but who is, as I understand it, legally qualified, have entered into discussions this morning and have resolved the issues relating to the subpoena. 6I can make short orders in relation to that in which the parties' agreement is reflected. 7The other issue which I raised with the parties was whether the matter was appropriately listed before the Duty Judge. It seems to me at first blush that this is a matter that will take in excess of two hours and whilst I understand that the matter has urgency from the perspective of those seeking the money, it is not the sort of urgency that often attends matters before the Duty Judge. 8Mr Bolger indicated that he was not aware that the matter was listed before the Duty Judge but now accepts that is so. He says that it is his experience that it is not an appropriate matter to be before the Duty Judge. On the other hand, Mr Charara urges me to confirm the hearing date before the Duty Judge on 13 August 2014. 9He says two things. First, he says that this is a very simple case and should be resolved very quickly. He has filed already written submissions and he tells me that he will be very brief in submissions and that he will be simply replying to any submissions filed on behalf of Cellnet and that he would limit himself to "five pages". 10The second thing Mr Charara says, which in my view will carry the day, is that he is to travel overseas where he lives and will be in Australia next week, ready and keen to conduct the hearing whereas if the case is adjourned into September or October, that will be most inconvenient for him and will result in additional costs merely in him travelling back. 11I am persuaded by Mr Charara's submission that I should maintain or confirm the hearing date for 13 August 2014 but in doing so I put on the record that I have warned Mr Charara that if the Duty Judge is confronted with a number of other matters of higher priority, he or she may determine not to hear this matter next week in the Duty List. 12I do not think it is appropriate that the matter be before the Duty Judge but I am prepared in the compelling circumstances to confirm the listing. 13The parties have helpfully reproduced the agreement they have reached in a document entitled Short Minutes of Proposed Order. In accordance with that document, I make the following orders: (1)Paragraph 1 of the subpoena to Cellnet filed by Jamal Charara on 19 May 2014 (the subpoena) is amended to read: "1 June 2008 to 30 June 2009." (2)Paragraphs 3, 4, 5 and 6 of the subpoena are not pressed. (3)Paragraph 1(b) and 1(c) of the notice to produce dated 1 June 2014 issued by Jamal Charara to Cellnet Group Limited is not pressed. I also make the following orders: (4)The hearing before the Duty Judge on 13 August 2014 is confirmed. (5)M Konneh is to file and serve his written submissions by close of business today, being 7 August 2014. (6)Cellnet is to file and serve its written submissions by close of business on 8 August 2014, noting that Cellnet may file any further submissions responding to Mr Konneh's submissions by close of business on 11 August 2014. (7)Mr Charara is to file any written reply which is to be limited to five pages at no less than 12 point font by 5 pm on 12 August 2014. (8)Costs of today and of the motion are reserved to be determined by the judge hearing the case.