ADEMIS & BEAUMAN & ORS
[2020] FCCA 1661
•23 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADEMIS & BEAUMAN & ORS | [2020] FCCA 1661 |
| Catchwords: FAMILY LAW – Subpoena – Subpoena issued to third parties in relation to property dispute – objection to subpoena by third parties – consideration of scope of documents requested – held that scope of subpoenas too broad – subpoenas struck out in part – costs of compliance with subpoena – costs of subpoena hearing – consideration of s.102NA of the Family Law Act 1975. |
| Legislation: Family Law Act 1975 ss.102NA, 117 Family Law Rules 2004 |
| Cases cited: Dillon & Dillon [2012] FamCA 319 |
| Applicant: | MR ADEMIS |
| Respondent: | MS BEAUMAN |
| Third Party Objector: | MS A BEAUMAN |
| Third party Objector: | MR ERSKINE |
| File Number: | MLC 5968 of 2019 |
| Judgment of: | Judge Blake |
| Hearing date: | 10 June 2020 |
| Date of Last Submission: | 10 June 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 23 June 2020 |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the Respondent: | Mr Carne |
| Solicitors for the Respondent: | Kenna Teasdale Lawyers |
| Counsel for the Objectors: | Mr Korman |
| Solicitors for the Objectors: | McMullan Solicitors |
ORDERS
The Schedule to the subpoena issued on 5 May 2020 to Ms A Beauman be amended as set out in Annexure A attached to these Orders.
The Schedule to subpoena issued on 5 May 2020 to Mr Erskine be amended as set out in Annexure B attached to these Orders.
The time for compliance with the subpoenas issued to Ms A Beauman and Mr Erskine be extended to 14 days from the date of this Order.
Upon production of the documents described in the subpoena to Ms A Beauman and Mr Erskine, those documents be released to the legal practitioners for the parties and the parties for inspection and photocopying.
The Applicant pay to Ms A Beauman and Mr Erskine, the amount of $6,600 on production by them of the documents produced to the Court under Schedules A and B attached to these Orders.
The Applicant pay to Ms A Beauman and Mr Erskine the costs of objecting to the subpoenas to each of them in accordance with the scale set out in the Schedule 1 of the Federal Circuit Court Rules 2001 within 60 days of the date of this order.
Pursuant to section 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) (“the Act”), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Applicant under the cross-examination scheme.
AND THE COURT NOTES THAT:
A.The effect of order 7 is that the Applicant is banned from personally cross-examining the Respondent.
B.Pursuant to order 7 hereof, the Applicant do all acts and things necessary to make an application to Victoria Legal Aid for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable his/her legal representation at Final Hearing.
C.The relevant application referred to in Notation A hereof is available to the parties at IS NOTED that publication of this judgment under the pseudonym Ademis & Beauman & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNEMLC 5968 of 2019
MR ADEMIS Applicant
And
MS BEAUMAN Respondent
And
MS A BEAUMAN Third Party Objector
And
MR ERSKINE Third Party Objector
REASONS FOR JUDGMENT
Introduction
The Applicant in this matter is Mr Ademis. He is presently engaged in proceedings in this Court relating to parenting matters, and the resolution of property matters with his former wife, the Respondent. As a step in the proceeding in respect of the property matters, the Applicant has arranged for subpoenas to be issued to Ms A Beauman and Mr Erskine. Ms A Beauman is the Respondent’s sister. Mr Erskine is the Respondent’s brother-in-law.
Ms A Beauman and Mr Erskine seek that the subpoenas addressed to them be struck out in their entirety. The Respondent also seeks that the subpoenas be struck out.
For the reasons that follow, I have decided that the subpoenas should be struck out in part.
Applicable Principles
The principles that govern whether a subpoena ought to be set aside are well known.
The principles were canvassed in Webb v Wheatly [2015] VSC 153 as follows:
‘The following principles govern the application to set aside the subpoena:
(a) It is necessary for the party at whose request the subpoena was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;
…
(c) However, the Court will not require production of subpoenaed documents, and will not permit access to subpoenaed documents, if the subpoena is expressed so broadly that the applicant cannot demonstrate, having identified a forensic purpose, that it is ‘on the cards’ or that there is a ‘reasonable possibility’ that the documents will materially assist the case of the party;
…
(e) … There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her case;
…’ (citations omitted)
In the Family Law jurisdiction, Cronin J in Dillon & Dillon [2012] FamCA 319 stated that:
‘[10] The fact in issue in the property dispute is the entitlement of the respective parties to a division of whatever property either or both of them has having regard to the provisions of s 79 of the Act. To test whether something would rationally affect the probability of a fact in issue requires consideration of the probative value of the material. In respect of material pursued under a subpoena, it must be asked whether that material would be reasonably expected to throw some light on the issue in the proceeding.’
The principles relating to subpoenas against non-parties, and the relevance of documents, were also discussed by Cronin J in Papadopoulos v Papadopoulos (No.2) [2007] FamCA 1683. Cronin J reviewed a number of authorities which indicated that caution should be exercised in respect of any order for non-party provision of documents, however stated that it was appropriate to make an order if the production of documents would assist in the timely resolution of issues. Cronin J concluded by stating:
‘[50] Accordingly, the bar is not set very high in respect to the question of relevance in a civil proceeding as between strangers. It should be less so in family law proceedings provided the pursuit of information is genuinely designed to assist in determining the issue and not for some illicit or harassing type of reason.’
The property proceedings
The property dispute that is presently before the Court is typical of many that come before this Court. The parties share real property, vehicles, and associated loans. The net asset pool value would appear, presently, to be around $600,000 to $700,000.
The Respondent has been employed for approximately 16 years by Erskine Group Pty Ltd and C Group. It is this relationship that appears to have given rise to the issuing of subpoenas by the Applicant.
The present controversy between the parties, and the Applicant’s desire to press for documents under the subpoenas, has its genesis in what appears to be a protracted dispute about whether each party has complied with its disclosure obligations. It is not in dispute that the Respondent has made loans of some significance to businesses associated with Ms A Beauman and Mr Erskine. What is clear from the correspondence however, and is admitted by the Respondent, is that she initially failed to disclose the existence of the loans, and furthermore, that there is not any formal loan documentation. The initial non-disclosure of the loans, at the very least, but perhaps coupled with the lack of formal loan documentation, has given rise to a claim by the Applicant that the Respondent has failed to disclose loans to, or investments in, businesses associated with Ms A Beauman and Mr Erskine, and also that the Respondent may have failed to disclose all income received from businesses associated with Ms A Beauman and Mr Erskine. No doubt the Applicant’s concerns are heightened even further by the fact that Ms A Beauman is the Respondent’s sister, and Mr Erskine is the Respondent’s brother-in-law.
The terms of the subpoenas
The subpoena to Ms A Beauman comprises of seven categories of documents. There are various subcategories within each category. The subpoena to Mr Erskine comprises of eight categories of documents, also with various subcategories in most of them. Categories 1 – 6 in each of the subpoenas is cast in the same terms.
It is not an understatement to say that the categories of documents sought by the Applicant are extensive. The Applicant, except for category 2 of the subpoenas, initially sought documents in the other categories dating back to 2013. By the time the matter came before me, the Applicant had agreed in respect of all categories, other than category 2, to reduce the documents sought to be produced to the period from 1 June 2016 to the present. Apart from that change, however, he otherwise pressed for the documents to be produced as contemplated by the scope set out in the original subpoenas.
The Applicant filed an extensive outline of argument prior to the hearing, as well as supporting affidavit material. In that outline, the affidavits and in the course of the hearing, he advanced a number of arguments as to why the subpoenas were appropriate and directed. The substance of the Applicant’s submissions as to why the documents identified in the subpoenas should be produced include the following:
a)the Respondent revealed on 1 October 2019 that she had transferred at least $350,000 to entities connected with Ms A Beauman and Mr Erskine, having previously not disclosed these amounts;
b)the Respondent’s investments in entities of Ms A Beauman and Mr Erskine remains unclear;
c)there is a lack of clarity around the Respondent’s dealings with Ms A Beauman and Mr Erskine, and that the documents sought under the subpoenas will shed light on those issues;
d)income received by the Respondent from an entity identified as D Pty Ltd remains unclear;
e)the amount of payments made to D Pty Ltd by entities of Ms A Beauman and Mr Erskine remains unclear;
f)the Respondent’s income remains unclear; and
g)the Respondent is either diluting the asset pool, or is hiding assets that ought to be included in the pool.
A central feature of the submissions of the Applicant was that a variety of matters were ‘unclear’ and therefore needed to be clarified. Viewing the documents under the subpoenas it was said would therefore assist in clarifying matters.
Prior to dealing with the substantive matters, it is necessary to say something about the procedural matters in the lead up to this hearing. The Applicant raised two objections. First, he submitted that the notices objecting to the subpoena were not notified within the time specified by rule 15A.14(1) of the Federal Circuit Court Rules 2001 (‘Rules’). The rule relevantly requires the objection to be notified prior to the return date of the documents specified in the subpoena. The Applicant’s complaint is that the notification of objection was received on the same day the documents were returnable.
I accept that the notices of objection were received on the same date as the documents were due to be returned under the subpoena. However, I am prepared to hear the objections for two reasons. First, the Applicant has suffered no prejudice in relation to the objection. Second, the Court is permitted to dispense with these rules in the interests of justice pursuant to rule 1.06 of the Rules. I am satisfied that it is in the interests of justice to dispense with strict compliance with rule 15A.14(1) of the Rules.
Second, the Applicant submits that the Respondent and the subpoena objectors did not submit their documents to the Court in accordance with the directions issued by the Court on 1 June 2020. He submits that the documents were served one day later (on 5 June 2020) and that the Respondent has not sought leave to rely on them. The subpoena objectors also filed their case outline on 9 June 2020 and an affidavit of John McMullan, solicitor, on 10 June 2020.
To the extent it is necessary to say so, I grant leave to the Respondent and the subpoena objectors to rely on the documents submitted on 5 June 2020 and 10 June 2020. The email sent from my chambers relating to filing of documents was made to enable the hearing to be conducted by Microsoft Teams, in circumstances where the parties could not just attend and hand to the Court or each other, documents in the usual fashion. Ultimately, the documents were sent ahead of the hearing and it proceeded on the Microsoft Teams platform. To the extent that the objector’s outline of argument was not sent, the Applicant was already aware of the concerns of the objectors, having received their letter of 4 June 2020 and having engaged in negotiations with them. He did not suffer prejudice because of the late filing of the outline. In so far as the McMullan affidavit is concerned, that was a short affidavit that simply attached correspondence passing between the parties. The Applicant was aware of that and suffered no prejudice because of the late filing.
I now turn to deal with each of the categories in the subpoenas, having regard to the principles I have articulated earlier, in the context of the present dispute.
Category 2 (both subpoenas)
This category of documents seeks from Ms A Beauman and Mr Erskine, among other things, all documents from any entity in which they are shareholders or directors that relate to the employment or contracting out of the Respondent.
The class of documents sought to be produced under this category is incredibly broad. It is not limited by date. In circumstances where the Respondent has worked for a period of 16 years, all documents in that 16 year period as described would have to be produced. Further the actual documents are not confined. The Applicant seeks all personnel files and employment records relating to the Respondent. Such documents could conceivably include performance appraisals, promotion documents, negotiations over pay and conditions and other matters. It is to be further noted that subparagraphs 2(d) to (f) do not constitute requests for documents, but rather are requests for information.
In my view, to require the production of documents under category 2 would be oppressive.
Category 3 (both subpoenas)
Category 3 is a category which seeks documents identified in various sub paragraphs numbered (a) to (j). The documents are sought from ‘Controlled Entities’ being any entity Ms A Beauman or Mr Erskine is a director or shareholder of, or any entity which is a subsidiary of an entity which they are directors or shareholders of (‘Controlled Entities’).
The first observation to be made about the various categories of documents that are set out in category 3 is that they seek documents from 1 June 2016 to the present date. The date range alone is excessive and ought be properly regarded as oppressive.
A closer examination of each of the subcategories reveals further problems. Subcategories (a) – (g), and (i) – (j) call for Ms A Beauman and Mr Erskine to produce documents relating to, inter alia, any entity jointly or partly owned or controlled by the Respondent. In order to comply with the subpoena, Ms A Beauman and Mr Erskine would be required to make enquiries and investigate each of the entities which they, or their respective businesses, have had dealings with, in order to ascertain whether those entities were jointly or partly owned or controlled by the Respondent. A subpoena recipient cannot be required to make investigations as to the ownership of entities with which it has had dealings. This would be an extensive task, and one that I would regard as oppressive.
Category 4 (both subpoenas)
Category 4 calls for the Controlled Entities to produce, inter alia, the BAS Statements and working papers evidencing the make up of the BAS Statements for any entity which made a payment in respect of an invoice provided by the Respondent or any entity jointly or partly owned or controlled by her.
Exactly how the BAS statements of the Controlled Entities in their entirety, or even during the post separation period of the parties, could be said to be relevant has not been adequately explained, if at all, in circumstances where one of the key questions that the Court will confront at trial is what is the composition of the asset pool. Further, this category suffers from the same defect identified in respect of category three above i.e. Ms A Beauman and Mr Erskine would need to investigate entities with which they have had dealings in order to determine whether the Respondent had an interest in that entity, in order to then be able to comply with subpoenas.
Finally, this is another category which calls for documents for the period 1 June 2016 to the present date. It is difficult to see how that can be justified given the issues which the Court will have to grapple with during any proceedings to determine the property entitlements of each party.
Category 5 (both subpoenas)
This category, inter alia, calls for documents evidencing loans or debt facilities made by Ms A Beauman and Mr Erskine to the Respondent, or from the Respondent to Ms A Beauman and Mr Erskine.
The first observation to be made about this category is that the Applicant seeks documents between the subpoena recipients and, among others, D Pty Ltd. It is not in dispute that the Applicant was a director of D Pty Ltd from the period 2011 to 5 April 2019. To the extent he seeks documents in respect of this entity, they ought to be documents that he is able to readily obtain for himself.
The more significant, and overarching problem with this category however, is that it suffers from the same problem that plagues categories 3 and 4 above. Ms A Beauman and Mr Erskine would need to investigate entities with which they have had dealings in order to determine whether the Respondent had an interest in that entity, in order to then be able to comply with subpoena.
Finally, this is another category in which documents sought for the period 1 June 2016 to the present date. On any view, the date range is oppressive.
Category 6 (both subpoenas)
This category calls, generally speaking, for copies of all bank statements of the subpoena recipients into which funds were paid by the Respondent or any entity controlled or owned by her, or from which funds were paid to the Respondent or any entity owned or controlled by her.
This category suffers from many of the same issues that affect the categories discussed earlier. To the extent that it does, I rely on my earlier reasons. In summary, those reasons are:
a)Ms A Beauman and Mr Erskine would need to investigate entities with which they have had dealings in order to determine whether the Respondent had an interest in that entity, in order to then be able to comply with subpoena. A subpoena recipient cannot be required to make investigations as to the ownership of entities with which it is had dealings; and
b)the period over which the documents are sought, being 1 June 2016 to the present date, is oppressive.
Category 7 of the Erskine subpoena and the Beauman subpoena
These categories suffer from the same problem identified in respect of the earlier categories. Namely, Ms A Beauman and Mr Erskine would need to investigate entities with which they have had dealings in order to determine whether the Respondent had an interest in that entity, in order to then be able to comply with subpoena.
Category 7 of the subpoena to Mr Erskine requires him to produce relevant invoices to him from D Pty Ltd. The Applicant was a director of that company and the documents should properly be ascertainable by him.
Category 7 of the subpoena to Mr Erskine and categories 7(p) – (q), and (u) – (w) of the subpoena to Ms A Beauman further require production of documents over an extended and apparently unconfined date range. The same can be said in relation to categories 7(o), (r) – (t) in the subpoena to Ms A Beauman. Again that date range is oppressive in view of the issues that will be before the Court.
Category 8 of the Erskine subpoena
The category constitutes a request for bank statements. This appears to be a duplication of other categories in which bank statements are also sought.
Disposition
It is apparent from what I have set out above that the terms of the subpoenas, as presently drafted, go beyond what is required in order to ‘throw some light’ on many of the issues. In many respects, the subpoenas appear to be fishing for information. The issue which then confronts the Court is whether the subpoenas should be struck out in their entirety, or be allowed in part.
In my view, this is a case where it is appropriate for the Court to turn its mind to whether parts of the subpoenas should be allowed to remain.
It is plain on the face of the material that the Respondent has made loans to businesses associated with Ms A Beauman and Mr Erskine. The amounts loaned are significant, particularly in light of the present value of the asset pool. Notwithstanding the significant quantum of those loans, the parties to the loan have not documented it in any formal way. This may be at least in part because of the familial connection between Ms A Beauman and Mr Erskine on one hand, and the Respondent on the other. In circumstances where such a significant sum has been loaned without formal documentation, the Applicant, it seems to me, is entitled to test the extent to which other funds may have passed between the Respondent and businesses connected with Ms A Beauman and Mr Erskine. He raises squarely the issue of non-disclosure of loans. It is an issue that goes directly to the value of the asset pool and it ought to be expected that subpoenas, properly directed, may ‘throw some light’ on the issue of what interests the Respondent has (whether as an investor, creditor or otherwise) in businesses connected with Ms A Beauman and Mr Erskine.
This matter is listed for trial in one month. The waiting times for trial in this Court are notoriously long. The Court needs to do what it can to ensure that the matter remains listed, and is run as efficiently as possible. It is not in the interests of either of the parties to this litigation for a dispute about the production of documents (be it arising from a dispute about the scope of a subpoena or otherwise) to delay the trial date. I note the observations of Cronin J in Papadopoulos set out earlier in these reasons that, in this jurisdiction, the Court needs to do what it can to ensure the efficient conduct of the proceedings, and that the bar is set somewhat lower in family law proceedings.
In conjunction with the above, the Applicant is unrepresented. He is obviously a man of some intelligence, however he self-evidently lacks the technical legal skills to properly draft a subpoena. It serves little purpose to strike out the whole of the subpoenas in the circumstances adverted to above.
In the lead up to the hearing before me, the representatives for Ms A Beauman and Mr Erskine wrote to the Applicant and proposed revised categories of documents that they would agree to produce under subpoena. The Applicant was not agreeable to those amendments. I have, however, reviewed closely the proposal by Ms A Beauman and Mr Erskine. Save for one issue discussed further below, the proposed amended schedules address each of the issues that I have identified with the subpoenas as presently drafted. They also appear to be broad enough in scope that documents produced under them may well shed a light and be of probative value in relation to the issue the Applicant is seeking to agitate: the nature of the Respondent’s financial relationship with businesses associated with Ms A Beauman and Mr Erskine and whether that relationship has affected the quantity available for distribution in the asset pool.
The one issue that requires some consideration is the period of time connected with the categories of documents to be produced under the subpoena. The relevant issue at trial will be the composition and value of the asset pool at the time the matter is heard. Against this, as is evident from what I have set out above, the Applicant seeks documents for periods extending back for 16 years, or alternatively to seven years, four years, depending on the category. Those periods are, as I have noted, excessive and oppressive. The date range proposed by Ms A Beauman and Mr Erskine, being documents produced from 1 June 2018 to the present date, was not explained in argument before me and appears to be an arbitrary date. Perhaps the only marker for it is that it is a two year period before the anticipated trial of this matter. Or that it is the year that the parties divorced, noting that the parties separated on 10 June 2016. Separately, a review of the evidence to which I was taken indicates that the first loan made by the Respondent (which she acknowledges) to businesses associated with Ms A Beauman and Mr Erskine occurred on or around 30 October 2017.
These are not matters that I was addressed on. Ultimately, it seems to me that given the evidence discloses that the first loan was made on or around 30 October 2017, this ought to be the cut-off date for the period when documents are to be produced under the subpoena.
In light of the above, I will order that Ms A Beauman and Mr Erskine produce documents in the terms set out in Annexure A and Annexure B to this decision within 14 days from the date of this order.
Costs of compliance with the subpoena
Under rule 15A.10 of the Rules, the Court may, on application, make an order for the payment of any loss or expense incurred in complying with a subpoena. Rule 15A.10 may be read in conjunction with rule 15A.11 of the Rules. Rule 15A.11 relevantly does two things. Sub rule (1) of 15A.11 provides that rule 15A.11 will apply if three conditions are satisfied. Relevantly, those conditions are:
a)a subpoena is addressed to a person who is not a party to the proceeding; and
b)before complying with the subpoena, the person subpoenaed has given the issuing party notice that substantial loss or expense would be incurred in properly complying with the subpoena, including an estimate of the loss or expense; and
c)the Court is satisfied that substantial loss or expense is incurred in properly complying with the subpoena.
Under sub rule (2), the issuing party is to pay the estimated loss or expense under sub rule (1)(b) unless the Court or a Registrar otherwise directs.
Ms A Beauman and Mr Erskine in this matter seek their costs in connection with producing documents. In so far as the estimated cost of compliance is concerned, there is some lack of uniformity in the amount said to be estimated. Mr Erskine’s affidavit sets out an estimate of loss and expenses of approximately $6,600 for producing documents under the revised schedules for the period from 1 June 2018. The affidavit from Mr Erskine’s and Ms A Beauman’s solicitor, however, estimates the cost at $7,500 to produce documents under the revised schedules for the period from 1 June 2018. Further, as noted above, I am of the view that documents under the amended schedules should be produced for the period from 30 October 2017 to the present.
In my view, ultimately, the variations between the estimates are not significant in this case. The rule ultimately calls for the provision of an ‘estimate’, not the provision of a specific sum. I am satisfied that an estimate has been provided to the Applicant prior to this hearing. I would regard the estimate as being $6,600. I take the view that this is the appropriate sum because it is one of the amounts estimated. I also take into account that it may be an under estimate, given that I have extended the date range from that proposed by Ms A Beauman and Mr Erskine.
It is important to observe that sub rule 15A.11(b) refers to the recovery of ‘substantial loss or expense’. In Moriarty v Moriarty [2009] FamCA 369, Cronin J discussed the concept of ‘substantial’ loss in respect of subpoenas under the Family Law Rules 2004. His Honour stated as follows:
‘WHAT IS THE LOSS TO BE COMPENSATED?
57. The rules refer to a “substantial” loss or expense.
58. The determination of what is substantial is very subjective. In my view, it means that the expense must be large causing loss; it must be unusual in the sense of requiring normal activity to be stopped; or it must cause an unfair inconvenience having regard to the fact that the recipient has nothing to do with the litigation.
59. Assessment of the reasonableness of burdens involved in complying with a subpoena must take account the capacity of a party to collect and produce the documents. That means that in a large organization, the capacity to cover the expense is greater than in a small organization (see Lucas Industries v Hewitt (1978) 18 ALR 555 and G and D & D (2005) FamCA 1429).
60. Notwithstanding the administration of justice issue, the rules are not intended to put the individual presenting the documents in a position where they lose income or capital. The rule however refers to a substantial expense and each situation must be determined on its peculiar facts.
61. However, if the subpoena is simple and clear, requiring the production of the recipient’s own documents, the inconvenience is intended and expected to be minimal.
62. Thus, in a case where a professional fee is claimed or the bobcat driver claims significant hours of “downtime”, the question still remains whether the finding, collecting, collating, marshalling and producing the documents or materials required the attention of the owner, partner or professional or whether it could be done by a clerical person albeit with some ownership or professional oversight. It is that question that the judicial officer has to ask in every case.
63. The outcome is determined by the exercise of a discretionary judgment guided by the rules of court.’
In this matter, the estimate of loss has been arrived at by calculating the professional fees that Ms A Beauman and Mr Erskine would incur from charging clients of their business, and assuming that they will not be able to charge clients those sums because they will be diverted in looking for documents the subject of the subpoena. I have no evidence before me in relation to the size of the business conducted by Ms A Beauman and Mr Erskine, or the significance of the estimate of $6,600. The absence of such material makes it difficult to assess whether the loss is substantial. On the other hand, I consider it reasonable to infer that they will spend personal time looking for the documents the subject of the subpoena, given the extent of the search that is required to be undertaken, and given that the documents sought to be produced are not just business documents, but also personal documents. It is therefore reasonable to infer that they will lose income they could otherwise personally generate because they will be looking for documents the subject of the subpoena. For these reasons, I am satisfied that they would face an unfair inconvenience having regard to the fact they are not parties to the litigation. In these circumstances, I regard the amount of $6,600 as being a substantial loss or expense for Ms A Beauman and Mr Erskine.
I am otherwise satisfied that all of the other conditions for payment of loss and expenses have been met by Ms A Beauman and Mr Erskine, having regard to the affidavit of Mr Erskine and Mr Erskine’s and Ms A Beauman’s solicitor. I will therefore make an order that the Applicant pay the sum of $6,600 to Ms A Beauman and Mr Erskine at the time documents are produced under the subpoenas.
Costs of the application objecting to the subpoena
Ms A Beauman and Mr Erskine sought an order for costs against the Applicant. Costs are sought on the basis that the representatives for Ms A Beauman and Mr Erskine wrote to the Applicant on 4 June 2020. In their letter, Ms A Beauman and Mr Erskine proposed amended categories of documents on the basis that the scope of the documents sought under the subpoenas was oppressive and, in part, constituted a fishing expedition. Those proposed amended categories have ultimately been found by the Court to be appropriate, save for the period of time covering the production of documents.
The terms of the letter sent to the Applicant requested his reply on the same date. That was unreasonable, given the Applicant was unrepresented, and given the scale of the amendments.
The Applicant says that he continued to negotiate up to the hearing. I do not have before me, however, any evidence as to the negotiations that occurred between 4 June 2020 and the date of the hearing. The only information I have is the Applicant’s submission that he agreed to change the date range in some of the categories of documents in the subpoenas, and the acknowledgment by the Respondent, Ms A Beauman and Mr Erskine of this. Apart from that, the fact remains that the Applicant appeared at the hearing and apart from the concession he made in relation to the date ranges in the subpoena, continued to press for production of all documents under the subpoenas. He has been largely unsuccessful in his pursuit of the documents.
The power of the Court to award costs is set out in section 117 of the Family Law Act 1975 (‘Act’). Subsection (1) provides that each party to the proceeding is to bear his or her own costs. That of course is not strictly relevant in this matter where third parties seek to have their costs paid by a party. Subsection (2) provides that the Court may, subject to, among others, subsection (2A) and the applicable rules of Court, make such order as the Court considers just. Most relevantly, subsection (2A)(c) provides that in considering whether to make an order, the Court shall have regard to the conduct of the parties to the proceeding including in relation to pleadings, particulars, discovery, inspection and production of documents, and similar matters. Also, relevant in this case is subsection (2A)(e) which specifies a relevant consideration as being whether any party to the proceedings has been wholly unsuccessful in the proceedings, and subsection (2A)(f) being whether a party to the proceedings has made an offer in writing to the other to resolve the proceedings (in this case to resolve the dispute about the subpoenas). I note that Courts in this jurisdiction have in the past made orders that parties to litigation pay the costs of subpoena objectors: X Pty Ltd and Ors & Merhi [2015] FamCA 862.
In this matter, the Applicant was put squarely on notice six days before the hearing in relation to the issues with the subpoenas as drafted. Not only that, he was offered a compromise. He rejected the compromise, and his only attempt to moderate his position appears to have been the concession he made to the date ranges for documents. He has pursued the matter today and has been largely unsuccessful.
For the reasons above, I am satisfied that I should make an order for costs having regard to the terms of section 117(2) and 117(2A)(c), (e) and (f) of the Act. I will award costs to Ms A Beauman and Mr Erskine in accordance with the scale set out in Schedule 1 of the Rules in objecting to the subpoenas.
Section 102NA order
Toward the end of the hearing, the Respondent raised an issue as to whether the Court ought to make an order under section 102NA of the Act preventing the Applicant from cross-examining the Respondent at the upcoming trial. In raising the issue, the Respondent readily conceded that the circumstances contemplated by subsection 102NA(1)(c)(i)-(iii) were not satisfied in this case.
The alleged family violence that the Respondent suggests the Court should have regard to in considering whether to make an order under section 102NA is referred to in the Respondent’s Notice of Risk filed with the Court and elaborated on in her affidavit of 21 August 2019. The alleged violence consists of abusive language directed toward the Respondent, threats to publish intimate pictures of the Respondent, and threats to have the Respondent arrested.
The issue of the extent of the discretion conferred by section 102NA(1)(c)(iv) of the Act and the circumstances in which it may be exercised has been discussed recently by Justice Gill in Owen & Owen [2020] FamCA 90. In that matter, Gill J canvassed a range of matters in considering whether to make an order banning cross examination under section 102NA of the Act. Gill J looked at, among other things, the purpose of the legislative amendment, which included ensuring that victims of alleged family violence were not re-traumatized because they were subjected to cross examination by the perpetrator of the family violence. Gill J also noted the importance of the scheme by which persons subject to a ban on cross examination could seek access to publicly funded legal representation to ameliorate the effects that the ban would have on the conduct of the case of the alleged perpetrator of family violence.
Gill J ultimately decided that the order under section 102NA should not be made in the circumstances of that case, having regard to, among other things, the nature of the family violence said to have been suffered and importantly, the fact that funding for legal representation, which would have ameliorated the effect of the ban, was not certain. Gill J was of the view that, inter alia, in circumstances where funding was not certain, the lack of funding meant that the Court should not exercise the discretion to make the order.
In this matter, there are aspects of the alleged family violence that are directed toward the children of the Respondent. I agree with Gill J that this aspect of the matter attracts lower weight when deciding whether to exercise the discretion to make an order under section 102NA. There are, however, allegations of family violence that are directed toward the Respondent. Unlike the case before Gill J, in this matter, the specific incidents of family violence are identified with particularity.
Further and significantly, unlike the situation before Gill J, in this matter, the Applicant has indicated his intention to be represented at the trial. Accordingly, there is not in this case, the consideration that weighed heavily on Gill J, being the lack of access to funding for legal representation that accompanies part of the overall scheme of which orders under section 102NA are a part. This is because the Applicant here has indicated he will be represented.
When these matters are considered, I am of the view that I should make an order preventing the Applicant from personally cross-examining the Respondent. The Order will issue.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 23 June 2020
Annexure A
Schedule to subpoena issued to Dr A Beauman
A copy of this subpoena.
For any entity for which you are a director or shareholder of, including any entity which is a subsidiary of an entity you are a director or shareholder of, copy of all personnel files, records and documents relating to the employment and/or contracting of the Respondent created, provided or received during the period from 30 October 2017 to date, limited to the following:
(a)the Respondent's payslips or other documents pertaining to the distribution of monies paid by way of salary or other benefits to the Respondent or her nominee;
(b)the Respondent’s group certificates;
(c)the Respondent’s contract of employment, letter of engagement or other documents setting out the terms of her engagement.
For any entity for which you are a director or shareholder of, including any entity which is a subsidiary of an entity you are a director or shareholder of (“Controlled Entities”), copy of all:
(a)agreements, documentation and correspondence referring to the engagement of the Respondent, D Pty Ltd and E Pty Ltd by the Controlled Entities (or on their behalf) created, provided or received during the period from 30 October 2017 to date;
(b)agreements, documentation and communication referring to any loans, advances or other debt facilities made by the Controlled Entities (or on their behalf) to the Respondent, D Pty Ltd and E Pty Ltd created, provided or received during the period from 30 October 2017 to date;
(c)agreements, documentation and communication referring to any loans, advances or other debt facilities made by the Respondent, D Pty Ltd and E Pty Ltd to the Controlled Entities (or on their behalf) created, provided, or received during the period from 30 October 2017 to date;
(d)invoices provided by the Respondent, D Pty Ltd and E Pty Ltd to the Controlled Entities (or on their behalf) during the period from 30 October 2017 to date;
(e)pages from statements relating to any bank accounts held in the name of the Controlled Entities or on their behalf or in their joint name with other persons or entities from 30 October 2017 to date, showing payments made for invoices provided by the Respondent, D Pty Ltd and E Pty Ltd and otherwise redacted;
(f)pages from statements relating to any bank accounts held in the name of the Controlled Entities or on their behalf or in their joint name with other persons or entities showing amounts paid by the Respondent, D Pty Ltd and E Pty Ltd to the Controlled Entities (or on their behalf) from 30 October 2017 to date and otherwise redacted;
(g)pages from statements relating to any bank accounts held in the name of the Controlled Entities or on their behalf or in their joint name with other persons or entities showing payments to the Respondent, D Pty Ltd and E Pty Ltd by the Controlled Entities (or on their behalf) from 30 October 2017 to date and otherwise redacted.
Copies of all agreements, documentation and communication referring to any loans, advances or other debt facilities made by:
(a)you (or on your behalf) to the Respondent, D Pty Ltd and E Pty Ltd from 30 October 2017 to date;
(b)the Respondent, D Pty Ltd and E Pty Ltd to you (or on your behalf) from 30 October 2017 to date.
Copies of all pages from statements relating to any bank accounts held in your name or on your behalf or in your joint name with other persons:
(a)showing amounts paid by the Respondent, D Pty Ltd and E Pty Ltd to you (or on your behalf) from 30 October 2017 to date and otherwise redacted;
(b)showing amounts paid to the Respondent, D Pty Ltd and E Pty Ltd by you (or on your behalf) from 30 October 2017 to date and otherwise redacted.
ln relation to C Group copies of:
(a)all agreements, documentation and correspondence referring to the engagement of the Respondent, D Pty Ltd and E Pty Ltd by C Group (or on its behalf) from 30 October 2017 to date;
(b)all agreements, documentation and communication referring to any loans, advances or other debt facilities made by the Respondent, D Pty Ltd and E Pty Ltd to C Group (or on its behalf) from 30 October 2017 to date.
(c)all agreements, documentation and correspondence referring to any services provided by the Respondent to C Group, created, provided or received between 30 October 2017 to date;
(d)all agreements, documentation and correspondence referring to any arrangement between you and the Respondent, D Pty Ltd and E Pty Ltd regarding funds received from the Respondent and transferred to C Group created, provided or received between 30 October 2017 to date;
(e)all agreements, documentation and correspondence referring to any arrangement between you and the Respondent, D Pty Ltd and E Pty Ltd regarding funds received from the Respondent and transferred to any persons or entities outside of the Commonwealth of Australia created, provided or received between 30 October 2017 to date;
(f)all invoices provided by the Respondent, D Pty Ltd and E Pty Ltd to C Group (or on their behalf) from 30 October 2017 to date;
(g)all pages from statements relating to any bank accounts held in the name of C Group or on its behalf or in its joint name with other persons or entities from 30 October 2017 to date showing amounts paid for invoices provided by the Respondent, D Pty Ltd and E Pty Ltd and otherwise redacted;
(h)all pages from statements relating to any bank accounts held in the name of C Group or on their behalf or in their joint name with other persons or entities showing amounts paid by the Respondent, D Pty Ltd and E Pty Ltd to C Group (or on its behalf) from 30 October 2017 to date and otherwise redacted.
Annexure B
Schedule to subpoena issued to Mr Erskine
A copy of this subpoena.
For any entity for which you are a director or shareholder of, including any entity which is a subsidiary of an entity you are a director or shareholder of, copy of all personnel files, records and documents relating to the employment and/or contracting of the Respondent created, provided or received during the period from 30 October 2017 to date, limited to the following:
(a)the Respondent's payslips or other documents pertaining to the distribution of monies paid by way of salary or other benefits to the Respondent or her nominee;
(b)the Respondent's group certificates;
(c)the Respondent's contract of employment, letter of engagement or other documents setting out the terms of her engagement.
For any entity for which you are a director or shareholder of, including any entity which is a subsidiary of an entity you are a director or shareholder of (“Controlled Entities”), copy of all:
(a)agreements, documentation and correspondence referring to the engagement of the Respondent, D Pty Ltd and E Pty Ltd by the Controlled Entities (or on their behalf) created, provided or received during the period from 30 October 2017 to date;
(b)agreements, documentation and communication referring to any loans, advances or other debt facilities made by the Controlled Entities (or on their behalf) to the Respondent, D Pty Ltd and E Pty Ltd created, provided or received during the period from 30 October 2017 to date;
(c)agreements, documentation and communication referring to any loans, advances or other debt facilities made by the Respondent, D Pty Ltd and E Pty Ltd to the Controlled Entities (or on their behalf) created, provided or received during the period from 30 October 2017 to date;
(d)invoices provided by the Respondent, D Pty Ltd and E Pty Ltd to the Controlled Entities (or on their behalf) during the period from 30 October 2017 to date;
(e)pages from statements relating to any bank accounts held in the name of the Controlled Entities or on their behalf or in their joint name with other persons or entities from 30 October 2017 to date, showing payments made for invoices provided by the Respondent, D Pty Ltd and E Pty Ltd and otherwise redacted;
(f)pages from statements relating to any bank accounts held in the name of the Controlled Entities or on their behalf or in their joint name with other persons or entities showing amounts paid by the Respondent, D Pty Ltd and E Pty Ltd to the Controlled Entities (or on their behalf) from 30 October 2017 to date and otherwise redacted;
(g)pages from statements relating to any bank accounts held in the name of the Controlled Entities or on their behalf or in their joint name with other persons or entities showing payments to the Respondent, D Pty Ltd and E Pty Ltd by the Controlled Entities (or on their behalf) from 30 October 2017 to date and otherwise redacted.
Copies of all agreements, documentation and communication referring to any loans, advances or other debt facilities made by:
(a)you (or on your behalf) to the Respondent, D Pty Ltd and E Pty Ltd from 30 October 2017 to date;
(b)the Respondent, D Pty Ltd and E Pty Ltd to you (or on your behalf) from 30 October 2017 to date.
Copies of all pages from statements relating to any bank accounts held in your name or on your behalf or in your joint name with other persons:
(a)showing amounts paid by the Respondent, D Pty Ltd and E Pty Ltd to you (or on your behalf) from 30 October 2017 to date and otherwise redacted;
(b)showing amounts paid to the Respondent, D Pty Ltd and E Pty Ltd by you (or on your behalf) from 30 October 2017 to date and otherwise redacted.
Copy of all invoices provided by the Respondent, D Pty Ltd and E Pty Ltd to you (or on your behalf) from 30 October 2017 to date.
Copies of all pages from statements relating to any bank accounts held in your name or on your behalf or in your joint name with other persons from 30 October 2017 to date, showing amounts paid for invoices provided by the Respondent, D Pty Ltd and E Pty Ltd and otherwise redacted.
0
7
4