NHB Enterprises Pty Ltd v Corry (No 4) [2020] NSWSC 426

Supreme Court New South Wales

Medium Neutral Citation: NHB Enterprises Pty Ltd v Corry (No 4) [2020] NSWSC 426 Hearing dates: 20 April 2020 Date of orders: 21 April 2020 Decision date: 21 April 2020 Jurisdiction: Equity Before: Williams J Decision: Leave to issue subpoenas to Christopher Athanassios and Daniel McKinnon granted. Leave to issue subpoena to Leanne Balit refused. Catchwords: PRACTICE AND PROCEDURE – subpoenas – unrepresented litigants – application for leave to issue three subpoenas pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 7.3 – whether subpoenas sought to be issued have a legitimate forensic purpose or not otherwise liable to be set aside – leave granted to issue two subpoenas – leave refused to issue third subpoena Legislation Cited: Supreme Court Rules 1970 (NSW), Part 55 Uniform Civil Procedure Rules 2005 (NSW), r 7.3 Cases Cited: Hamzy v Commissioner of Corrective Services (No 1) [2017] NSWSC 183 Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 Texts Cited: J D Heydon, Cross on Evidence (11th ed, 2017, LexisNexis Butterworths) Category: Procedural and other rulings Parties: Alexander Stephen Corry (Applicant/First Defendant) Representation: Counsel: A Corry (In person) (Applicant/First Defendant) File Number(s): 2019/54125 Publication restriction: N/A

Judgment

Procedural background 1. By Amended Notice of Motion filed on 20 December 2019 and an Amended Statement of Charge in Annexure "A" to that Amended Notice of Motion, the plaintiffs seek declarations that the first defendant and two other respondents to that Notice of Motion are in contempt of court, and an order that they be punished for the alleged contempt (the Contempt Motion). 2. The Contempt Motion has been listed for hearing to commence on 29 April 2020. 3. The first defendant is not represented by a solicitor in this proceeding, and has made various applications under r 7.3 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for leave to issue subpoenas. The first defendant says that he wishes to issue the subpoenas for the purpose of obtaining evidence relevant to the Contempt Motion. 4. As the first defendant is the applicant under UCPR r 7.3 and also the first respondent to the Contempt Motion, it is convenient to refer to him in these reasons as Mr Corry. Many of the allegations that are the subject of the Contempt Motion also involve alleged conduct of the fifth defendant in this proceeding, who is also the third respondent to the Contempt Motion. It is convenient to refer to the fifth defendant as Mr Ghaly. The second respondent to the Contempt Motion, Boriana Corry, is not a defendant to this proceeding. These reasons will refer to her as Mrs Corry. 5. The matter was listed before me on 16 April 2020 for the hearing of those applications and for the hearing of a notice of motion filed by the first defendant on 7 April 2020. On that occasion, Mr Corry stated that he no longer wished to press all of his applications under UCPR r 7.3, and was not ready to proceed with the applications that he did wish to press. The explanation given was that he had been focussed on preparing for the hearing of his notice of motion. 6. In those circumstances, I made a direction that Mr Corry send an email to my Associate by 12pm on 17 April 2020 (copied to the legal representatives for the plaintiffs) identifying the applications under UCPR r 7.3 that he had sent to the Registry of the Court and that he now wished to press. 7. Mr Corry sent an email to my Associate at 10am on 17 April 2020 (copied to the legal representatives for the plaintiffs) stating that he pressed applications for leave to issue the following subpoenas: 1. A subpoena to attend and give evidence addressed to Daniel McKinnon of Complete Legal and Conveyancing. This was a new application dated 17 April 2020 attached to Mr Corry's email to my Associate, together with a copy of the proposed subpoena; 2. A subpoena to produce addressed to Christopher Athanassios. Mr Corry's email to my Associate stated that an application for leave to issue this subpoena had been sent to the Registry of the Court on 2 April 2020. However, no such application can presently be found on the court file; 3. A subpoena to produce addressed to Leanne Balit. Mr Corry's email to my Associate stated that an application for leave to issue this subpoena had been sent to the Registry of the Court on 25 March 2020. The court file contains an application dated 25 March 2020, stamped as received on 30 March 2020, for leave to issue a subpoena to Ms Balit to produce 18 categories of documents by 17 April 2020. The copy of the proposed subpoena to Ms Balit attached to Mr Corry's email to my Associate on 17 April 2020 differs from the document attached to his application received by the Registry on 30 March 2020. The version attached to Mr Corry's 17 April 2020 email appears to be a draft version. 1. The matter was listed before me yesterday for further hearing by telephone of Mr Corry's notice of motion filed on 7 April 2020. In response to a question from me, Mr Corry indicated that there was no reason why I should not also hear submissions in relation to his three applications for leave to issue subpoenas and determine those applications. 2. I indicated that I would hear submissions about and determine those applications above on the basis that: 1. I would treat the draft subpoena to Mr Athanassios that was attached to Mr Corry's email to my Associate dated 17 April 2020, together with Mr Corry's submissions to be made orally at yesterday's hearing, as comprising an application under UCPR r 7.3 for leave to issue that subpoena; 2. I would treat the application for leave to issue a subpoena to Ms Balit as being comprised of the application and proposed subpoena received by the Registry on 30 March 2020 and I would disregard the draft subpoena attached to the first defendant's email to my Associate dated 17 April 2020. 1. An application under UCPR r 7.3 is commonly determined on the papers without hearing from any other party to the proceeding. The plaintiffs and Mr Ghaly were represented by their solicitor and counsel (respectively) at yesterday's telephone hearing and indicated that they did not seek to be heard in relation to Mr Corry's applications for leave to issue the three subpoenas.