National Australia Bank v Sayed (No. 11)

On 15 February 2018 I delivered judgment on a Notice of Motion filed by Mr Sayed on 28 November 2017, National Australia Bank v Sayed (No. 10) [2018] NSWSC 108. One of the prayers in that Notice of Motion was for leave for Mr Sayed to issue a subpoena to DibbsBarker, the solicitors for the Bank, and another subpoena to a company called Allmain Pty Ltd.

In my judgment I refused leave for the issue of the subpoena to Allmain for the reasons I there gave. In short I did not consider that there was any issue on the pleadings concerning Allmain. I also refused leave for Mr Sayed to issue the subpoena to DibbsBarker on the bases that four Notices to Produce had been served by him and his solicitors at various times seeking similar or identical production of documents.

When that motion was before me for hearing, it was ascertained that Mr Sayed sought to issue a subpoena to DibbsBarker because he maintained that there had not been proper and complete production of documents required in the four Notices to Produce. In my judgment I said that it was not appropriate to issue a subpoena to deal with an issue of non-compliance of an earlier subpoena or Notice to Produce. Accordingly, the issue of the asserted non-compliance was listed for hearing before me today. I directed that Mr Sayed was to notify the Bank what documents he said had not been produced, and the Bank could thereafter respond. That was an attempt to narrow the issues to be determined today.

Mr Sayed sent an e-mail on 20 February 2018 which purported to comply with that direction. There were only three specific complaints. The first was that there had not been production of the MERC journal that was ultimately obtained in about 2015. That, however, was a matter which has passed into history for present purposes because that journal has been produced and, as Mr Sayed asserts, it is one of the most significant documents in the proceedings.

The second concerned documents in relation to Allmain Pty Ltd. I held in my judgment of 15 February that those documents are not relevant and should not be produced.

The third concerned a letter from the Bank to Richard Taylor of 22 February 2010. Mr Taylor was a business partner of Mr Sayed who was an owner with him of the Corrimal land. That document has been located by the Bank, although at this stage the Bank does not know if it has already produced this document The letter has now been produced. It does not, in any event, appear to me to have any relevance to the issues in the proceedings.

On 21 February DibbsBarker forwarded an e-mail to Mr Sayed saying that they were having difficulty identifying the documents that he asserted the Bank had not produced that it ought to have produced in answer to the Notices to Produce. The e-mail asked him to provide them with a list of documents or types of documents in the Bank's possession which had not been produced. Mr Sayed said that he believed that he responded to that e-mail by identifying the documents. The Bank says it did not receive that e-mail in reply and certainly it was never copied to my associate as earlier e-mails had been.

On 20 February, and in the face of admonitions I had given to Mr Sayed that he was not to file or serve documents without my leave because the proceedings were being case managed by me, he served yet another Notice to Produce on the Bank. That document required production of the following documents:

One of the groups of documents that that Notice to Produce requires are files kept by Allmain. Otherwise the Notice to Produce requires the production of documents by the Bank “not already produced” in answer to the earlier Notices to Produce. This is not the identification of particular documents for a non-compliance application. As I noted in my judgment at [55], the Bank has a continuing obligation, as it has acknowledged in e-mails, to produce any further documents it finds in response to Notices to Produce already served.

Mr Sayed is not able to point to any other particular document or group of documents that he says have not been produced by the Bank. He has focused on the MERC journal. He says in that regard that the failure of the Bank to produce it at an earlier time probably disadvantaged him in the settlement of the part of the proceedings not concerned with the sale of the Corrimal land. That is not anything I can deal with on the present application or, indeed, at all.

In my opinion Mr Sayed has not identified any particular documents which the Bank failed to produce that it ought to have produced. Accordingly, the present application is dismissed. The Notice to Produce dated 20 February 2018 is set aside. I reiterate that Mr Sayed is not to file or serve any documents not authorized by me in these proceedings or by a judge of this court if I am not available.

The Bank sees indemnity costs.

This was a hopeless application. When I gave judgment refusing Mr Sayed leave to issue the subpoenas, the following exchanges took place between Mr Sayed and me:

Mr Sayed could not have been in any doubt about what was required of him. Instead, the approach he took in that improperly issued Notice to Produce of 20 February 2018 and today was simply to ask for any documents that the Bank had not already produced. I had already ruled against him on documents relating to Allmain. The complaint about the MERC journal was entirely misconceived.

Mr Sayed should pay the costs of today on an indemnity basis.