Charara v Grewal

Judgment 1The plaintiff sues two officers of the Australian Tax Office based on what seem to be allegations of misfeasance in public office relating in part to an audit of the tax affairs relating to his business. He also from time to time assists people voluntarily to make visa applications and the like. 2What the plaintiff says are the material facts are pleaded in extensive detail in his statement of claim. Central to the interlocutory dispute before me is the plaintiff's allegation that the first named defendant was motivated by malice in initiating and implementing the audit. 3The plaintiff says that about a month before the audit, which occurred on 22nd June 2007, the first named defendant had consulted the plaintiff about assisting him to bring his mother to settle in Australia from overseas. The plaintiff refused, as I understand it, because he felt there was no entitlement to make the immigration application. He says that the first named defendant was greatly resentful and threatened to destroy "all [the plaintiffs] taxation affairs with the tax office" and to "finish [him] off". The first defendant denies that he ever attended the plaintiff's offices other than for the purpose of the audit on 22nd June 2007. He denies that he ever consulted the plaintiff for any help, ever made any threats to him, or was conducting himself other than in the proper discharge of his duties as an officer of the Australian Taxation Office. 4The proceedings have reached a stage where the plaintiff has filed evidence including an affidavit of Rona Atef Hamieh sworn 29th May 2013. Ms. Hamieh was formerly in a de-facto relationship with the plaintiff, and at one time was employed by him. From 2003 she established her own business and in 2007 she shared the defendant's business premises at Alexandria. The company she used to conduct the business was sold to the plaintiff in 2008. 5Ms. Hamieh deals with the alleged visit of the first defendant of May 2007 at [9] to[11] of her affidavit. She deals with the circumstances of the visit of June 2007 at [12] to [15]. The witness says she made an entry in her then company's MYOB system recording details of the visit of 22nd June 2007. She incorporates those entries, a printout of which is "Exhibit RAH 03", in her evidence at [14]. This computer printout includes what might be referred to as a diary entry said to have been made on 22nd June 2007 in the following terms: [The first defendant] is the same man attended last month re. mother visa to Aust. From India, JC cannot help, [He] said he will destroy JC tax affairs. Attended to audit with Christopher [sic]. 6In response to the service of Ms. Hamieh's affidavit, by letter dated 17th June 2013, the solicitors for the defendants, under the provisions of s167 Evidence Act 1995 (NSW), made a request that the plaintiff produce the MYOB electronic file for the period June 2007 to the present, and provided a 16 gigabyte USB stick for that purpose. During a further exchange of correspondence it was explained that the defendants wished to check the authenticity of "Exhibit RAH03" by inspecting the electronic files to ascertain when the "card file" and "contact log" documents containing the diary entry were produced or entered. Following this clarification, the plaintiff refused to comply with the request. 7For the purpose of s167, "request" is defined by s166 as extending to a request that one party makes to another for the production of "the whole or any part of a specified document or thing... to permit the requesting party, adequately and in an appropriate way, to examine, test or copy or the whole or a part of the specified document or thing". 8Section 167 permits a party to make "a reasonable request ... for the purpose of determining a question" that relates to, inter alia, a previous representation, or the authenticity, identity or admissibility of a document or thing. 9In Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307, Basten JA, Spigelman CJ and Ipp J agreeing, stated at 30: The scope of the trinity in s 167(c), "authenticity, identity and admissibility", is reasonably clear as to its core, but imprecise at the periphery. For example, a party may seek to tender a handwritten file note, the relevance of which may be obscure unless one knows the author of the document, when it was created and whence it was extracted. These may be considered questions of "identity" in relation to a document or thing. If the nature of the document, its author and its time of creation is apparent on its face, there may be a question as to whether it is indeed what it purports to be, which might be categorized as a question of "authenticity". Those matters may determine whether it is relevant, whether it is a business record, and may thus be matters affecting its admissibility. There is thus no entirely clear dividing line between questions of authenticity and identity and each may provide a basis for admissibility (citations omitted). 10As Ms. K. Dawson of counsel, who appeared for the defendants, puts it in her clear and helpful written submissions: The question that the defendants seek to determine in this matter relates to whether the MYOB file entries are what they are claimed to be - that is, file entries on 22nd June 2007 by Ms. Hamieh. 11Ms. Dawson relies on s169(1) of the Evidence Act, which so far as is material provides: If the party has, without reasonable cause, failed or refused to comply with a request, the court may, on application, make one or more of the following orders: (a) an order directing the party comply with the request; ... (c) an order that the evidence in relation to which the request was made is not to be admitted in evidence; 12The defendants did not specifically seek an order in terms of s169(1)(b) for production, largely because they were sceptical that the plaintiff would comply given his refusal of their request so far. But I am not prepared to assume against him that the plaintiff will refuse to obey an order of the Court, and accordingly, I will consider paragraph (b) along with the other matters relied upon by the defendants. 13Reading s169 as a whole, I am rather of the view that the Court is not empowered to make an order that the evidence in relation to which the request was made is not to be admitted into evidence only "if an order made by it under ss(1)(a) or (b) is not complied with", as Mr. Charara, who is self represented, submits: s.169(3). 14Mr. Charara submitted otherwise that he was justified in refusing to comply with the request on three grounds: (1)RAHO3 did not relate to any question to be determined because the defendant admitted the attendance at his offices on 22nd June 2007 when the record was made; (2)The request was not reasonable, because "millions of electronic files" would need to be produced and the request was therefore oppressive; (3)That the document or thing is not available to him because it was the property of a company now deregistered. 15I reject each of these arguments. First, assuming that the affidavit of Ms. Hamieh is read at the trial, the content of RAHO3 presumably will be read because it is incorporated in [14] of her affidavit for the purpose of proving the attendance of the first defendant in May 2007, rather than his undisputed attendance on the 22nd of June 2007. Whether he went there in May 2007 is very hotly in contest. 16I reject the second argument because I am not satisfied that compliance with the request would involve undue expense or delay or would not be reasonably practicable. In this regard, I accept the evidence, albeit hearsay, contained in Mr. Cutler's second affidavit sworn 22nd July 2013 at [6] and [8], that the MYOB file can be copied into a 16 gigabyte thumb drive involving a simple right click, or series of right clicks, on a mouse, and dragging the file or files onto the thumb drive icon. 17A document or thing is taken not to be available to a party "if and only if", relevantly, it would be impractical to produce the document or thing during the course of the proceedings or it is not in the possession or under the control of the party and it cannot be obtained by Court order. The other alternative conditions to paragraph (e) of clause 5 of Part 2 of the dictionary to the Evidence Act are not relevant. 18What I have said about Mr. Charara's second argument covers the question of practicality or otherwise of production. The argument that it is not under Mr. Charara's control because it is the property of Media Press Computer Supplier Pty Ltd, a company now deregistered, should be rejected. Mr. Charara bought the company from Ms. Hamieh in 2008. He was a director and shareholder immediately prior to deregistration. By s601AD(5) Corporations Act 2001 (Cth), the plaintiff is the person obliged to keep the company's books and records, extending in my judgment to the MYOB files. Moreover, it is obvious that he has exercised this control by causing Ms. Hamieh's affidavit to be prepared with the printouts annexed. 19I repeat that the defendants have supplied the plaintiff with the thumb stick to enable the copying to be undertaken. 20During argument, Mr. Charara expressed concern that if he was required to produce the MYOB files the defendants might share them with their employer, the Australian Tax Office, with whom he has been in dispute previously, and therefore there was a risk that the process available under s169 might be put to an ulterior purpose. I think there are two answers to this concern. First, the principles discussed in Hearne v. Street [2008] HCA 36; 235 CLR 125, sometimes informally referred to as the "implied undertaking", prohibit using documents produced in that manner. Secondly, it is clear from Mr. Cutler's affidavits that the defendants wish to submit the material for inspection by an independent expert, Mr. Nigel Carson, to undertake the task of review and analysis of the MYOB file or files. To allay Mr. Charara's concerns, I will limit the persons who may have access to any copy of the MYOB files he produces, and to the results of Mr. Carson's work. 21As the defendants point out, to facilitate access to any copy produced in compliance with an order I may make in that regard, it is necessary to require the plaintiff to provide the administrator ID and password for the MYOB file or files. In my judgment, the ID and password is a "thing" for the purpose of s169(1)(b). 22For these reasons, I am persuaded that the defendants have made good their case for relief under s169(1). As I have said, I will not make an order under paragraph (c) of the section, because such an order, in my view, depends upon the satisfaction of subsection (3). 23My orders are: (1) Direct the plaintiff to produce the MYOB electronic file or files in relation to the Media Press Computer Supplier Pty Ltd program for the period 1st May 2007 to date by 10th August 2013, utilising the 16 GB USB stick provided by the defendants for that purpose, together with the administrator ID and password necessary to access the file or files; (2) Access to the files and any expert report concerning them to be restricted to the defendant's independent expert, counsel and solicitors. Neither the files nor the report are to be shared with any third party; (3) Reserve liberty to the parties to apply on three clear days written notice to the Registrar and to the other side; (4)The plaintiff to pay the defendant's costs of, and incidental to, the application.