Stanizzo v Badarne [2019] NSWSC 74

Supreme Court New South Wales

Medium Neutral Citation: Stanizzo v Badarne [2019] NSWSC 74 Hearing dates: 7 February 2019 Date of orders: 20 February 2019 Decision date: 20 February 2019 Jurisdiction: Common Law Before: Harrison J Decision: See body of judgment Catchwords: PROCEDURE – civil procedure – where plaintiff claims damages for malicious prosecution – where plaintiff and defendant have issued subpoenas to third parties – whether subpoenas have legitimate forensic purpose Category: Procedural and other rulings Parties: Vincent Francis Stanizzo (Plaintiff) Muhammad Badarne (Defendant) Representation: Counsel: C Waterstreet and M Rollinson (V Stanizzo) A Macauley (M Badarne) File Number(s): 2014/92425 Publication restriction: Nil

Judgment 1. HIS HONOUR: Mr Stanizzo and Mr Badarne have issued various subpoenas to third parties. Objection is taken to these subpoenas upon the basis that they lack any legitimate forensic purpose. These reasons deal with that issue.

Subpoena to Commissioner of Police 1. Mr Badarne issued a subpoena on 16 May 2018 directed to the Commissioner of New South Wales Police seeking production of the following documents: "1. All documents (including electronic communications) at any time recording, evidencing or referring to: (a) Any charges laid against Vincent Francis Stanizzo … other than charges in H 42189370 and all facts sheets in relation to such charges. (b) Any statements made in relation to any such charges laid against Vincent Francis Stanizzo … other than statements made in relation to charges within H 42189370. (c) Any Application for Apprehended Violence Order made by any person against Vincent Francis Stanizzo … and all statements made in support of such applications. (d) Any Application for Apprehended Violence Order made by Akram Stanizzo or Senior Constable Daniel Frazer for the protection of Akram Stanizzo or any other person. (e) All COPS entries created by the NSW police in relation to Vincent Francis Stanizzo…". 1. Mr Stanizzo asks that this subpoena be set aside upon the basis that it seeks documents that can have no relevance to any issue in the proceedings and therefore lacks any discernible or legitimate forensic purpose. 2. Mr Stanizzo has sued Mr Badarne alleging that he maliciously commenced and maintained proceedings against him without reasonable or probable cause. Those proceedings were criminal proceedings in which Mr Stanizzo was charged with four counts of intimidation of Mr Badarne. The proceedings were terminated and a nolle prosequi entered. 3. In my opinion, the subpoena seeks documents that can have no relevance in these proceedings. Mr Badarne has not filed a tendency or coincidence notice which might potentially have raised some basis upon which the material could be relevant. That apart, there is no legitimate basis for the receipt of any of this material in these proceedings. Mr Stanizzo's criminal history is unrelated to any issue concerned with the determination of whether or not Mr Badarne maliciously prosecuted him as he alleges. The subpoena should be set aside. 4. Mr Badarne observes that Mr Stanizzo's original objection to this subpoena by notice of motion filed on 5 June 2018 was withdrawn by him. Two things can be said about that. First, that withdrawal does not raise any estoppel against Mr Stanizzo and he is entitled to revive his objection to the subpoena before me. Secondly, the fact that the subpoena seeks documents that are so far outside the parameters of this case should in any event inform its ultimate fate.