Stanizzo v Badarne

1. [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. [2]

   Mr Badarne issued a subpoena on 16 May 2018 directed to the Commissioner of New South Wales Police seeking production of the following documents:

2. [3]

   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.

3. [4]

   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.

4. [5]

   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.

5. [6]

   Mr Badarne observes that Mr Stanizzo’s original objection to this subpoena by notice of motion filed on 5 June 2018 was withdrawn by him.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.

Subpoena to Department of Home Affairs

1. [7]

   Mr Stanizzo issued a subpoena on 7 May 2018 directed to the Department of Home Affairs seeking the following documents:

2. [8]

   The basis upon which Mr Stanizzo contends that this material has a legitimate forensic purpose is contained in Mr Stanizzo’s affidavit sworn 1 June 2018. In very brief summary, Mr Stanizzo challenges the authenticity of certain transactions between Mr Badarne and third parties that contain references to travel between Australia and Israel. Additionally, Mr Stanizzo refers in his affidavit to Mr Badarne’s evidentiary statement in which Mr Badarne gives an account of him and his wife and children travelling between Israel and Australia from 1990 up until the present. Mr Stanizzo contends that the documents that are sought are relevant to Mr Badarne’s credibility regarding the issue of whether or not he misappropriated the sum of $220,000 and the permanence or otherwise of Mr Badarne’s residence in Australia.

3. [9]

   Doing the best I can, I have considerable difficulty seeing that the department’s records have any possible connection to the issues at large in these proceedings. I note that the documents relating to Ahmad Abou Ria are not objected to by Mr Badarne but the balance of them remains in contest. I have difficulty understanding how the immigration records of Mr Badarne or his wife can have any relevance in the proceedings at all. They are in addition presumably only directed to Mr Stanizzo’s case in reply, if any. Having regard to the fact that Mr Badarne may well lead no evidence at all, the legitimacy of Mr Stanizzo’s forensic purpose seems to be even more doubtful. I do not in the circumstances consider that Mr Stanizzo should be given access to these documents. I will not, however, at this stage set aside the subpoena against the contingency that some firmer foundation for the use of the documents might possibly emerge as these cases progress.

Subpoena to University of Wollongong

1. [10]

   Mr Stanizzo has also issued a subpoena on 25 July 2018 directed to the University of Wollongong seeking the production of the following documents:

2. [11]

   Part of what I understand Mr Stanizzo will wish to contend in his case against Mr Badarne is that Mr Badarne was involved in a relatively substantial transaction that was in truth a sham or otherwise not genuine and that his obligations under the agreement were to be met from funds coming to him from an illegitimate source. One of those obligations would appear to relate to a sum of $220,000 referred to earlier. Mr Stanizzo wishes to have the employment and other records from the university in order to establish that Mr Badarne, who was at one time working there as a lecturer or tutor, could not have been earning sufficient funds to enable him to have paid that sum from his own resources.

3. [12]

   Mr Stanizzo deposes to some of these matters in his affidavit sworn on 29 August 2018 in the following relevant terms:

4. [13]

   More recently, in a letter dated 23 August 2018 written by Mr Rollinson of counsel for Mr Stanizzo to Mr Badarne, Mr Rollinson asserted that the forensic purpose of the University of Wollongong material was “very clear” and indicated that “the documents sought are relevant to credit”. I take that reference to convey the contention that Mr Badarne could not have provided the expended monies from his known sources of income.

5. [14]

   However, the assessment of whether Mr Badarne’s credit becomes an issue in these proceedings is uncontroversially linked to the question of whether or not he gives evidence. As I have already indicated above, as well as in several other contexts in the course of the proceedings, there must remain some considerable doubt about whether Mr Badarne does so. The fact that he has provided a statement of evidence to Mr Stanizzo in anticipation of giving evidence does not foreclose that issue.

6. [15]

   I am not presently satisfied that there is an identified or legitimate forensic purpose for the subpoena issued to the university. It may well be, depending upon what evidence is led by any of the parties, that the question becomes clearer at some point as these proceedings continue. The question of the forensic purpose of this subpoena can be revisited at that time if it seems appropriate.