Liristis v Gadelrabb [2009] NSWSC 441

New South Wales Supreme Court

CITATION : Liristis v Gadelrabb [2009] NSWSC 441

HEARING DATE(S) : 28 April 2009 JURISDICTION : Equity Division Duty Judge List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 28 April 2009

DECISION : Parts of subpoena set aside

CATCHWORDS : EVIDENCE - Subpoenas - Legitimate forensic purpose - application to set aside - where defendant's subpoena seeks criminal records of plaintiff and plaintiff's father in relation to convictions for dishonesty - whether subpoena which seeks documents relevant only to credit is legitimate - where credit is an important issue - whether subpoena is "trawling" for evidence with which to impugn credit of witness - whether reasonable grounds to think that documents relevant to impugn credit will be found - Held: ample reason to think that relevant documents will be found in relation to plaintiff - No reasons before court to think evidence will be found against plaintiff's father

LEGISLATION CITED : (NSW) Evidence Act 1995, s 103(2) (NSW) Uniform Civil Procedure Rules 2005 r 33.4(1)

CATEGORY : Procedural and other rulings

CASES CITED : Fried v National Australia Bank (2000) 175 ALR 194

PARTIES : Tony Liristis (plaintiff) Julia Gadelrabb (defendant)

FILE NUMBER(S) : SC 5533/07

COUNSEL : Ms B K Nolan (plaintiff) Mr R G Keller (defendant)

SOLICITORS : Tiernan & Associates (plaintiff) Peter J Webb (defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST

BRERETON J

Tuesday 28 April 2009

5533/07 Tony Liristis v Julia Gadelrabb JUDGMENT (ex tempore) 1 HIS HONOUR: These proceedings, between the plaintiff Tony Liristis and the defendant Julia Gadelrabb, for specific performance of an alleged oral contract for the sale of land, are listed for hearing before Ward J to commence on Thursday 30 April 2009 for two days. A central issue is whether the alleged oral contract on which the plaintiff sues was in fact made. In that respect, the evidence is word against word – the plaintiff's word apparently supported by his father, Mr Tasos Liristis, against the word of the defendant. 2 On 15 April 2009, the defendant issued a subpoena to produce, addressed to the Police Commissioner, returnable on 24 April 2009, requiring production of: 1. Complete copy of criminal records specifically those regarding any convictions for dishonesty and in particular perjury, and any convictions under the Oaths Act 1900 NSW in relation to a Mr Tony Liristis, [address and date of birth suppressed]; 2. Complete copy of criminal records, specifically those regarding any convictions for dishonesty and in particular perjury, and any convictions under the Oaths Act 1900 NSW in relation to a Mr Tasos Liristis… 3 By Notice of Motion filed on 20 April 2009, the plaintiff seeks an order setting aside the subpoena, contending that it is without legitimate forensic purpose and is an abuse of process. 4 It will be apparent from the above short summary of the issues in the principal proceedings, and it is not controversial, that the respective credit of the plaintiff and his father on the one hand and of the defendant on the other, will be important and probably determinative. It cannot be contended that the existence of a conviction for dishonesty would not be relevant to the question of credit. Moreover, even documents which, though not evidencing a conviction for dishonesty, enabled a party to establish or tend to establish that the other had made false statements when under an obligation to tell the truth, could legitimately provide the basis for cross-examination as to credit (under (NSW) Evidence Act 1995, s 103(2)). 5 I do not understand it ever to have been a proper objection to a subpoena that it seeks documents relating only to credit. Indeed, one of the fundamental distinctions between the processes of subpoenas for production and discovery is that subpoenas, unlike discovery, may be used to obtain documents relevant only to questions of credit, for the purpose of assisting cross-examination as to credit. It is true that in Fried v National Australia Bank (2000) 175 ALR 194, Weinberg J in the Federal Court of Australia said that it was inappropriate to permit a subpoena to stand which does little more than to trawl for documents that may be used to impugn the credit of a particular witness. I do not disagree with that observation, but that is not to say that it is inappropriate to permit a subpoena to stand that seeks documents that may be used to impugn the credit of a particular witness, as distinct from merely trawling for such documents. The concept of "trawling" in this context is the same as that of "fishing". It is not fishing to seek documents when there are reasonable grounds to think that fish of the relevant type are in the pond or, as it has been expressed in other cases, that it is "on the cards" that relevant documents (even if they are relevant only to credit) will be elicited by the subpoena. 6 There is evidence before the Court on the present application that Mr Tony Liristis was prosecuted on a charge of perjury, convicted in the District Court, and appealed successfully to the Court of Criminal Appeal, which allowed the appeal and quashed the conviction, and ordered a new trial. Mr Liristis was not acquitted by the Court of Criminal Appeal; a new trial was ordered. There is no evidence at this stage as to whether the new trial proceeded, nor if so, what was its outcome. There is, therefore, ample reason to suppose that there may be in the possession, custody or power of the Police Commissioner criminal records relating to convictions for dishonesty, and in particular perjury. 7 It is not necessary for a party called upon to sustain the relevance or the propriety of a subpoena to show that there is likely to be a document in every category of that called for by the subpoena. Were it otherwise, the pursuit of relevant evidence would be unduly constrained by a requirement to craft subpoenas which were so narrow in their scope that relevant documents easily escape its reach. In short, there is reason in this case to think there are documents relating to convictions for dishonesty, and in particular perjury, in relation to Mr Tony Liristis; and there is a legitimate forensic purpose for the issue of the subpoena in the terms in which it is expressed in that respect. 8 So far as the second paragraph of the subpoena is concerned, however, in respect of his father Mr Tasos Liristis, there is no evidence before me on this application, nor any reason to suppose, that there would be any such documents in existence. I readily accept that documents that tended to show that Mr Tasos Liristis had been guilty of an offence of dishonesty would be the legitimate object of a subpoena, for the purposes of impugning his credit. I also accept that not much evidence would be required to show sufficient reason to justify a subpoena couched in relatively narrow terms for such documents. Even some basis for a suspicion – as slight as some instruction from a client that the client believed that the person in question had been prosecuted for such an offence – might suffice. But in this case there is absolutely nothing to suggest, nor any reason to suppose, that there are any such documents in existence so far as Mr Tasos Liristis is concerned. In respect of him, the subpoena is therefore nothing more than a fishing expedition, to see whether any such documents are in existence. Accordingly, paragraph 2 of the subpoena cannot be sustained. 9 The rules of Court now authorise the Court to set aside subpoenas in whole or in part [UCPR r 33.4(1)]. It follows that this subpoena should be set aside in respect of paragraph 2 of the Schedule, but not in respect of paragraph 1. 10 I order that paragraph 2 of the schedule to the subpoena to produce issued at the request of the defendant to the NSW Police Commissioner dated 15 April 2009 be set aside. 11 The parties have had equal measures of success. I make no order as to costs, to the intent that each party bear its own costs of the motion.

**********

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.