Alden & Alden (No 2)
[2023] FedCFamC1F 765
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Alden & Alden (No 2) [2023] FedCFamC1F 765
File number(s): CAC 1359 of 2022 Judgment of: SCHONELL J Date of judgment: 5 September 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Objection to subpoena – Where the husband objected to the documents produced on subpoena – Where the husband contended that the documents produced fell outside the scope of the subpoena – Where the Court is not satisfied that there is any basis for objecting to the scope of the subpoena on its width – Husband’s oral application dismissed. Cases cited: Alliance Petroleum Australia (NL) v Australian Gas Light Co (1982) 44 ALR 124
Dunn v KAZ Group Ltd [2006] NSWSC 8
Lucas Industries Ltd v Hewitt (1978) 45 FLR 174
National Employers’ Mutual General Insurance Association Ltd v Waind & Hill [1978] 1 NSWLR 372
R v Barton [1981] 2 NSWLR 414
Re Southern Equities Corporation Ltd (in liq); Bond v England (1997) 140 FLR 202
Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710
Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 4 September 2023 Place: Sydney Counsel for the Applicant: Ms Mooney SC with Mr Hogg Solicitor for the Applicant: Orman Solicitors Counsel for the Respondents: Ms Gillies SC Solicitor for the Respondents: King Cain Solicitors ORDERS
CAC 1359 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ALDEN
Applicant
AND: MR ALDEN
First Respondent
B PTY LTD
Second Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
4 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The respondent husband’s oral application in relation to the subpoena issued to EE Lawyers is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Alden & Alden has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
An issue has arisen in relation to documents produced under subpoena by EE Lawyers last week in contested financial proceedings that commenced yesterday before another judge of Division 1 of the Court. Determination of that issue had been referred to me, I presume for the purposes of protecting the integrity of the judicial process should the trial judge see documents that he should not otherwise have seen.
The husband’s senior counsel made an oral application seeking an order for the delivery up and thereafter destruction of copies of documents produced under the subpoena and a restraint on the wife using any of the documents in the proceedings. A further clarification with the husband’s senior counsel in an endeavour to put some more precision around the actual form of application revealed in reality a late objection to production on the basis that some of the documents produced fell outside of the scope of documents required by the subpoena to be produced.
The application was opposed by the wife.
Having heard submissions and examined the subject documents, I dismissed the husband’s oral application. These are my reasons for so doing.
BACKGROUND
EE Lawyers are the lawyers for the parents of the husband in the proceedings. The parents have not been joined as parties to the litigation.
The parents were the owners of a property called “FF Property”, which was sold in 2021 with settlement of the sale occurring in early 2022. The sale price was some $18 million. I am informed by senior counsel for the wife that one of the issues in the proceedings is whether any part of the proceeds of sale have been provided or will be provided to the husband.
On 15 August 2023, a subpoena was issued by the wife’s solicitors to EE Lawyers. The subpoena called for the production of the following documents:
2.Copies of all records in relation to the sale of the property situate at and known as “[FF Property]”, [GG Street, Town HH] in the State of New South Wales pursuant to Contract for Sale dated […] 2021, including but not limited to PEXA records, Settlement Adjustment Sheets, Trust ledgers, tax invoices, receipts, capital gains tax calculations, documentation evidencing payment of capital gains tax and all documentation and correspondence evidencing the distribution of sale proceeds and deposit monies for the following entities:
(a) JJ Pty Ltd;
(b) KK Pty Ltd;
(c) LL Trust; and
(d) MM Trust.
Documents in relation to the subpoena were returned on Tuesday, 29 August 2023 and a Notice of Request to Inspect was then filed by the wife’s solicitors. A tender bundle containing various documents including those the subject of the subpoena were served on the husband’s solicitors on the morning of Friday, 1 September 2023. I am informed that an objection was raised by the husband’s senior counsel to the wife’s senior counsel on Sunday, 3 September 2023, querying the source of some of the documents in the tender bundle. The source of those documents, I am told, are those produced under the subpoena.
SUBMISSIONS
The husband’s senior counsel submitted that a subpoena had previously been issued to EE Lawyers for the production of documents and that upon objection by the husband’s parents, the Court by consent orders recast some of the categories of documents.
Senior counsel for the husband sought to invite the Court to draw a conclusion from the previous objection. As I understand the submission, by reason of time constraints and the speed with which the documents had been produced, I should infer that there may well have been or would have been some objection on behalf of the husband’s parents.
Such contention is errant speculation and not supported by even the slimmest of evidence. There is no objection to production of the documents by the husband’s parents and the husband’s parent’s solicitor has produced the documents to the Court. To accede to the submission of the husband’s senior counsel would be to validate speculation without foundation. I do not propose to do so.
The husband’s senior counsel also submitted that when one looks at the various documents in the tender bundle, they fall outside the descriptor in the subpoena, being “all documentation and correspondence evidencing the distribution of sale proceeds and deposit monies for the following entities”. It was submitted that the documents produced do not fall within such a category.
Senior counsel for the wife took the Court to various documents in the tender bundle.
A global submission was made that the documents evidence at various times how the proceeds of sale of the FF Property would have been dealt with and more particularly, how the husband has sought to control how the monies he is to or may receive are to be dealt with.
In particular, reliance was placed on correspondence between the parents’ solicitor and the husband’s sister dated 24 January 2022, which records:
See below email from [Mr Alden].
Let me know your thoughts.
Similar questions to what asked you.
I expect your parents, as [Mr Alden] has been told, will not agree to lie about the transaction.
I know you and your parents have spoken to a financial planner and expect that the funds can be managed by him until they can be lent or given to [Mr Alden].
Another email is from the husband’s sister to the solicitor dated 24 January 2022, which records:
… The financial planner’s opinion is that if [Ms NN] and [Mr PP] want to give [Mr Alden] a gift sum then it’s his issue to deal with regarding his marital settlement. [Mr Alden’s] assumption that funds would lie “idle” is completely unjustified.
However Mum and Dad have said they would stand by the request [Mr Alden] made to not give money before his settlement and possibly enter into a loan arrangement. Personally this does concern me as I know all they truly want is closure.
Another email from the solicitor to the husband dated 25 January 2022 records:
[Mr Alden],
As previously discussed, your parents are not willing to say something that is not the truth. As they never agreed to lend you the items, they will nor say they did.
In relation to the sale proceeds, your parents are taking advice on investing them and while I am not aware of the advice they have received, it would seem unlikely they will be sitting idle in a bank account unless that is the right investment decision at the time.
An email from a financial advisor to the parents’ solicitor dated 11 November 2022 refers to the parents having a $5 million term deposit with the National Australia Bank which they intend to bequeath to the husband, and another email from the husband’s sister to the husband’s parents’ solicitor dated 1 December 2022 records:
M & D explained the hurt they feel when he constantly telling people he’s destitute but refuses to use the [FF Property] ‘gift’ monies. They also again expressed understanding of why he’s not using it and again agreed (original promise made 12 months ago) to lending him money from the ‘gift money’.
…
[Mr Alden] requested that all machinery he now has from [FF Property] is on loan from Mum and Dad. I stated that Mum and Dad if at any time are asked to verify this they will not. I explained all [FF Property] business is wrapped up so this would be a lie.
(As per the original)
The wife’s senior counsel submitted that these documents clearly fall within the scope of the documents requested in the subpoena.
DISCUSSION
This application is not based upon what might be described as the more traditional grounds of objection, namely fishing, prejudice, oppression, abuse of process, nor apparent relevance to an issue in the proceedings.
The resolution of this application irrespective of whether the husband’s application is futile and of no utility when the documents have been produced and inspected, and the wife and her lawyers cannot unknow what they know involves a simple consideration of the terms of the subpoena. Either the documents fall within the descriptor of that requested or they do not.
Justice Campbell in Dunn v KAZ Group Ltd [2006] NSWSC 8 identified that the “fundamental test” to be applied is that “a subpoena must describe with reasonable particularity the documents for which it calls” (at [15]).
As for the scope of subpoenas, the following principles emerge from the authorities:
(1)It is permissible to ask for documents “relating to” a particular subject matter: see Alliance Petroleum Australia (NL) v Australian Gas Light Co (1982) 44 ALR 124 at 133-4.
(2)A subpoena that does not precisely describe the documents required or describes them only in general terms is not necessarily improper: see National Employers’ Mutual General Insurance Association Ltd v Waind & Hill [1978] 1 NSWLR 372.
(3)In determining whether a subpoena contains a sufficient “identification”, the court should consider how it is likely to be interpreted by its recipient: see Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710 (“Southern Pacific”) at 720; acting as a reasonable person with the knowledge of the surrounding circumstances: Re Southern Equities Corporation Ltd (in liq); Bond v England (1997) 140 FLR 202 at 213. This means the Court can take into account all of the relevant circumstances, including the identity of the recipient and its capacity to produce the documents, as well as the description of the documents called for: see R v Barton [1981] 2 NSWLR 414; Lucas Industries Ltd v Hewitt (1978) 45 FLR 174 (“Lucas Industries”) at 188–190.
(4)It follows that a subpoena is not necessarily improper merely because it uses expressions such as “referring to” or “relating to” in attempting to describe the documents whose production is required: see Southern Pacific; Lucas Industries at 191–192.
CONCLUSION
It is not controversial that the Court has power to control its own processes and one such aspect of that power is the regulation of the use of its processes including subpoenas.
As the authorities to which I have earlier referred to make plain, there is nothing impermissible about a subpoena that calls for records relating to a particular subject matter or for that matter there is not anything improper in the use of words of wide description such as “including but not limited to” as is here.
The subpoena called for “all records” in relation to the sale of FF Property “including but not limited to” documents and correspondence evidencing the distribution of the sale proceeds.
I do not accept the submission of the husband’s senior counsel that the proper construction of the subpoena is as limited as she submits. To construe the subpoena in the manner submitted by the husband’s senior counsel is to advance a narrow and reductive restriction on what the subpoena calls to be produced. The subpoena calls for all records in relation to the sale of the FF Property. They are words of expansive meaning. They do not narrow the scope of the subpoena in the term that senior counsel for the husband would invite.
Further descending into the particular, I am satisfied that the particular documents to which I was taken by senior counsel for the wife include documents and correspondence evidencing the distribution of the proceeds. The documents to which I have referred identify what was to happen with a sum of $5 million of the proceeds of the FF Property as well as various items of plant and equipment. The subject documents are clearly correspondence and they clearly evidence the distribution of the sale proceeds of the FF Property.
The authorities make plain that I can have regard to the attitude of the recipient of the subpoena. There is no objection from the potential owners of the documents, namely the husband’s parents or from the person to whom the subpoena was issued, being their lawyers. While they have previously objected, they have not this time, having produced the documents absent a Notice of Objection.
I am not satisfied that there is any basis for objecting to the scope of the subpoena on the grounds of its width.
Accordingly, these are my reasons for dismissing the oral application of the husband.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 5 September 2023
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