Allport and Anor and Allport

[2008] FamCA 336

FAMILY COURT OF AUSTRALIA

ALLPORT AND ANOR & ALLPORT [2008] FamCA 336

FAMILY LAW – PRACTICE AND PROCEDURE – Registrar – Review of registrar’s decision - application to set aside all or part of three subpoenae – various grounds alleging no apparent relevance or they constitute a request for discovery or are a fishing expedition or compliance would be oppressive or the terms are too wide – application dismissed – time set by registrar for compliance extended to 42 days. 

Family Law Act 1975 (Cth)

Hatton v The Attorney General of the Commonwealth of Australia and ors (2000) FLC 93-038
Commissioner of Railways v Small (1938) 38 SRNSW 564
Kelly & Kelly (No 2) (1981) FLC 91-108; 7 FamLR 762
Lucas Industries Ltd v Hewitt & Ors (1978) 18 ALR 555
National Employers Mutual General Association v Waind & Hill (1978) 1 NSWLR 372
Botany Bay Instrumentation & Control Pty Limited & anor v Stewart & anor [1984] 3 NSWLR 98
Trade Practices Commission v Arnotts (No. 2) (1989) 88 ALR 90
White and Tulloch v White (1995) FLC 92-640
Santos Ltd and Others v Pipelines Authority of SA (1996) 66 SASR 38
Bailey and Bailey (1978) FLC 90-424
Goodwin and Goodwin Alpe (1991) FLC 92-192

FIRST APPLICANT: Mr Allport (Snr)

SECOND APPLICANT: R Pty Ltd

RESPONDENT: Mrs Allport

FILE NUMBER: SYF 3380 of 2006

DATE DELIVERED: 15 May 2008

PLACE DELIVERED: Sydney

JUDGMENT OF: Moore J

HEARING DATE: 20 November 2007

REPRESENTATION

COUNSEL FOR THE FIRST AND SECOND

APPLICANTS:

Mr Dura

SOLICITOR FOR THE APPLICANTS: Barkus Edwards Doolan

COUNSEL FOR THE RESPONDENT: Mr Millar

SOLICITOR FOR THE RESPONDENT: Brian Samuel & Associates

Orders

1. The Application in a Case filed 19 September 2007 is dismissed.

1. Order 12 made by the Registrar on 12 September 2007 is discharged.

1. Orders 13, 14 and 15 made by the Registrar on 12 September 2007 are amended to read as follows:

   “13.     I order that within 42 days ANZ Bank produce to the court all of the documents described in the subpoena dated 4 May 2007, addressed to it by the court at the Wife’s request, and that all parties and their legal representatives have leave to inspect the said documents immediately upon such production.

   14.      I order that within 42 days [R] Pty Ltd produce to the court all of the documents described in the subpoena dated 4 May 2007, addressed to it by the court at the Wife’s request, and that all parties and their legal representatives have leave to inspect the said documents immediately upon such production.

   15.      I order that within 42 days [Mr Allport (snr)] produce to the court all of the documents described in the subpoena dated 4 May 2007, addressed to him by the court at the Wife’s request, and that all parties and their legal representatives have leave to inspect the said documents immediately upon such production.”

1. Within one (1) month R Pty Limited and Mr Allport (snr) are to pay the wife’s costs limited to the review application in a sum agreed and failing agreement as assessed.

IT IS NOTED that publication of this judgment under the pseudonym Allport and Anor & Allport is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF3380/2006

MR ALLPORT (SNR)

First Applicant

R PTY LTD

Second Applicant

And

MRS ALLPORT 

Respondent

REASONS FOR JUDGMENT

1. In pending property proceedings on 4 May 2007 solicitors for the wife issued three subpoenae directed to R Pty Ltd, Mr Allport (snr) and the ANZ Bank Limited for the production of certain documents. 

2. Mr Allport (snr) is the father of the husband, Mr Allport, who has taken no direct part in the dispute that arose from the issue of the supboenae.  R Pty Ltd, incorporated in October 1976, is the trustee of the Allport Family Trust and Mr Allport (snr) and his wife, Mrs Allport (snr), are the sole directors and shareholders of R Pty Ltd.  Neither the husband’s father nor R Pty Ltd are parties in the pending property proceedings. 

3. The subpoenae ultimately came before a Registrar on 12 September 2007 when objection was taken by R Pty Ltd and the husband’s father to the production of certain documents identified in all three, either the whole or part.  By that time written submissions had been lodged for the objectors and the wife and a gap in the evidence noted in the submissions for the wife had been cured by the filing of an affidavit sworn by the husband’s father on 22 August.  In the result, the Registrar resolved the dispute and made orders as to the costs of compliance with the ruling and orders to follow:

   “Background.

   1.        The matters before the court for determination concern three subpoenas, issued by the court at the Wife's request on 4 May 2007, addressed respectively to:

   a         ANZ Bank ("ANZ")

   b         [R Pty Ltd] and

   c         [The husband’s father].

   2. [R Pty Ltd], pursuant to the provisions of Rule 15.26 of the Family Law Rules 2004, objects to the whole of the subpoena addressed to it, and in part to the subpoena addressed to the ANZ Bank.

   3.        [The husband’s father] objects in part to the subpoena addressed to him.

   Documents.

   4.        I have had the benefit of considering detailed submissions from both Ms Morozov for the objectors (both initial submissions and further submissions) and from Mr Millar of behalf of the Wife (again, both initial submissions and further submissions).

   5.        I have also considered the matters set out in the affidavit of [the husband’s father] filed on 24 August 2007.

   Legal Principles.

   6.        The question of whether these subpoenaes, in whole or in part requires consideration of two issues:

   1.        Does the material sought have an apparent relevance to the issues in the principal proceedings, ie, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of the party at whose request the subpoena was issued.

   2.        Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of the person or organization who has sought the setting-aside of the subpoena."

   (Trade Practices Commission v Arnotts (1989) 88 ALR 90 Beaumont J at 103; Hatton v Attorney-General of Commonwealth of Australia, Commonwealth Bank of Australia, and Commonwealth Development Bank of Australia [2000] FamCA 892 ("Hatton") paragraphs 50 to 55.)

   Relevance

   7.        It is the party seeking to uphold the subpoena that must prove that the documents sought have apparent relevance to the issues in the matter (Santos Ltd and Others v Pipelines Authority of SA (1996) 66 SASR 38 at 52; Hatton paragraphs 55 to 59).

   8.        I am persuaded, for the reasons set out in the submissions by Mr Millar, that the material sought in the subpoenas has apparent relevance to the issues in the case.

   Oppression

   9.        In relation to the issue of whether the subpoenas are seriously and unfairly burdensome or prejudicial I note the material submitted by both sides in this regard, in particular the evidence set out in the affidavit of [the husband’s father] filed on 24 August 2007.

   10.      Taking the evidence of [the husband’s father] at its highest I do not find that the subpoenas are seriously and unfairly burdensome or prejudicial.

   Costs of Compliance

   11.      With respect the costs of compliance asserted on behalf of [the husband’s father], with respect to the subpoenas addressed to [R] Pty Ltd and [the husband’s father] himself, I do not accept either the time spent or the hourly rates asserted by the objecting parties. Consequently I decline to make an order for costs of compliance in the sum of $932.50. Given the volume of documents requested, I order that the Wife pay costs of compliance in the sum of $125.00 with respect to the subpoena addressed to [R] Pty Ltd and the sum of $125.00 with respect to the subpoena addressed to [the husband’s father], such sum to be paid within 7 days.

   Costs of Objection

   12.      I order that [R] Pty Ltd and [the husband’s father] pay the Wife's costs in relation to the objection as agreed or assessed.

   Orders

   13.      I order that within 7 days ANZ Bank produce to the court all of the documents described in the subpoena dated 4 May 2007, addressed to it by the court at the Wife’s request, and that the all parties and their legal representatives have leave to inspect the said documents immediately upon such production.

   14.      I order that within 28 days [R] Pty Ltd produce to the court all of the documents described in the subpoena dated 4 May 2007, addressed to it by the court at the Wife’s request, and that the all parties and their legal representatives have leave to inspect the said documents immediately upon such production.

   15.      I order that within 28 days [the husband’s father] produce to the court all of the documents described in the subpoena dated 4 May 2007, addressed to him by the court at the Wife’s request, and that the all parties and their legal representatives have leave to inspect the said documents immediately upon such production.

4. On 19 September 2007 the husband’s father and R Pty Ltd filed a review of those orders and sought costs against the wife.  That came before me on 20 November when counsel elaborated upon the earlier written submissions.  On the substantive applications I varied the times for production but otherwise dismissed the review application.  These orders were made:

   1.        The Application in a Case filed 19 September 2007 is dismissed.

   2.Order 12 made by the Registrar on 12 September 2007 is discharged.

   3.Orders 13, 14 and 15 made by the Registrar on 12 September 2007 are amended to read as follows:

   “13.    I order that within 42 days ANZ Bank produce to the court all of the documents described in the subpoena dated 4 May 2007, addressed to it by the court at the Wife’s request, and that all parties and their legal representatives have leave to inspect the said documents immediately upon such production.

   14.      I order that within 42 days [R] Pty Ltd produce to the court all of the documents described in the subpoena dated 4 May 2007, addressed to it by the court at the Wife’s request, and that all parties and their legal representatives have leave to inspect the said documents immediately upon such production.

   15.      I order that within 42 days [the husband’s father] produce to the court all of the documents described in the subpoena dated 4 May 2007, addressed to him by the court at the Wife’s request, and that all parties and their legal representatives have leave to inspect the said documents immediately upon such production.”

   4.Within one (1) month [R] Pty Limited and [the husband’s father] are to pay the wife’s costs limited to the review application in a sum agreed and failing agreement as assessed.

5. In doing so, I indicated that if either party wanted reasons for the ruling other than what was said at the time I would make them available on request.  The solicitors for the objectors did request further reasons but regrettably other cases have inhibited their availability until now. 

6. First to some background, including the ambit of the dispute.  Generally expressed, R Pty Ltd objects to production of (i) all or any of the documents sought from the company; (ii) some of the documents sought from the ANZ Bank; and the husband’s father objects to production of (iii) some of the documents in the subpoena addressed to him. 

7. Such factual background as is available largely comes from the affidavit of the husband’s father.  In summary, his evidence is this:

   ·    He is a director of R Pty Ltd and holds shares in eight other named companies.  At 74 years of age he manages and oversees the operation of businesses they operate.  He does not undertake routine tasks such as bookkeeping but employs a bookkeeper part time for that purpose. 

   ·    The most recent files for R Pty Ltd [about two years] are kept at the business premises and the remainder are archived and stored at N in Sydney. 

   ·    Each company keeps a cash book which identifies money received and paid and a record is made of the cheque number and the reason for payment as well as being given a sequential filing number to the invoice put in a relevant folder. 

   ·    He relates the process necessary to identify payments made to his son and/or daughter in law: review by his bookkeeper or assistant of the cash books and identification of the cheques falling within the description in the subpoena.  He says a list of cheques drawn for each company could be prepared and he estimates that would take about 10 – 20 hours.  When payment details have been identified, the corresponding bank statements could be extracted from the files.  To retrieve the boxes and relevant files from storage to locate cheque butts from 1 January 2001 to 2005, either his bookkeeper or administrative assistant would have to go through the files to locate the bank statements and cheque butts.  He estimates that would take 10 – 20 hours.  He cannot search for these records himself; he relies on employees for that. 

   ·    He says the subpoena to R Pty Ltd requires a wide range of accounting records to be produced in addition to the bank statements and cheque butts, such as invoices, accounts and the like.  He would have to retrieve the boxes from storage to locate the documents related to the period from 1 January 2001 to 2005, he or his bookkeeper would have to go through the files to locate the relevant documents and he estimates this would take 10 – 20 hours. 

   ·    An employee would have to travel to N to retrieve the boxes from storage.  Some of the records required are current and he cannot produce the originals as they are required to operate and manage the companies and businesses.  Nor is he able to produce the original accounting records of the companies for the financial year ending 30 June 2007 as they are needed by the accountant to prepare the financial reports for the last financial year.  These records, if production is required, will need to be photocopied. 

   ·    He will produce the documents to which no objection is taken.  He has incurred costs in complying with the subpoena: $120 for copying and $862.50 for 1.5 hours of his accountant’s time.  He had been paid conduct money of $50 and he seeks an order that the wife pay his costs of complying with the subpoena in the sum of $932.50.  He also says he and R Pty Ltd have incurred legal costs of $3,375 objecting to the subpoenas.  He sought legal advice when served and has been legally represented in respect of the objections taken.  He asks that the wife pay his legal costs. 

8. Before coming to the particulars and the submissions to support them, there were some submissions of general application made on behalf of the objectors which can be noted now.  First, attention is drawn to Family Law Rules 2004 15.16 and 15.26.  The latter sets out the requirement for attendance at court to apply for an order to set aside a subpoena, object to production of documents, claim payment of loss or expense or seek any other relief in relation to a subpoena.  That has been done in this case. 

9. It is then said that a subpoena can only be issued for a proper purpose and if issued for an improper purpose it is liable to be set aside as an abuse of process.  No issue could be taken with that. 

10. Next, s 55 of the Evidence Act is cited to found the submission that ‘(t)o be relevant, a subpoena must produce documents, which will assist the Court in reaching a determination on a matter in issue in the proceedings.’  Section 55 of the Evidence Act 1995 (Cth) does relate to relevant evidence; its’ terms are these:

    ‘(1)     The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

    (2)      In particular, evidence is not taken to be irrelevant only because it relates only to:

    (a)      the credibility of a witness; or

    (b)      the admissibility of other evidence; or

    (c)       a failure to adduce evidence.’

11. Finally, the general submissions cited the Full Court decision of Hatton v The Attorney General of the Commonwealth (2000) FLC 93-038 as the ‘authoritative statement’ in the approach to determination of subpoena disputes and two submissions are drawn from it: the category of cases in which a subpoena will be set aside is not closed and the legal onus is on the wife [here] to establish that each category of documents sought has ‘apparent relevance’ to the issues before the court. 

12. I come now to the terms of the subpoenae and summarise the objectors’ submissions about them. 

(i) subpoena to R Pty Ltd – objection to entirety

1. The terms of the subpoena to R Pty Ltd are these:

   (a)      Copies of all agreements for loans between [R] Pty Ltd and [the husband], either alone or jointly with any other person, together with any correspondence, notes of attendances by any person and minutes of any meeting in relation to such loans.

   (b)      Copies of any ledgers, balance sheets and other accounting records of [R] Pty Ltd in relation to any loan from [R] Pty Ltd to [the husband] and/or [the wife].

2. The basis of objection is said to be abuse of process for these reasons: (i) no apparent relevance; (ii) a ‘fishing expedition’; (iii) used for the purpose of obtaining discovery against a third party; (iv) compliance would be oppressive; and (v) the terms are too wide. 

3. It is submitted for R Pty Ltd by way of general principle that a subpoena must sufficiently describe with reasonable particularity the documents required to enable the recipient to know what to produce and it is not for the recipient to construe the terms or make a judgment about what is required and nor is the recipient required to ‘discover’ documents by determining what is ‘relevant’.  It is then said that the subpoena does not specify the period for which documents are sought and since R Pty Ltd was incorporated in 1976 it obliges the company to inspect financial documents stretching back 30 years, a period that significantly exceeds the length of the parties’ marriage, when no apparent relevance has been demonstrated.  Furthermore, the words ‘ledger’ and other accounting records’ are extremely wide and are not described with reasonable particularity, leaving R Pty Ltd ‘improperly to determine if a document is relevant’. 

4. Later, with the benefit of the wife’s submissions in reply, the explanation given for not specifying a period is said to be insufficient.  If the husband had disclosed in his affidavit any loans from the husband’s father and/or R Pty Ltd prior to 2001 one could expect this to have been referred to in the wife’s submissions and as no reference was made to loans prior to that time it is reasonable to conclude the husband gives no such evidence; therefore, the wife has effectively admitted to a ‘fishing expedition’ and nor has any ‘apparent relevance’ been revealed. 

5. Returning to the requirement for sufficient particularity, the submissions in reply state that a recipient should not be required to consult a dictionary and exercise a judgment about what documents are to be produced before going about collecting them.  Here, the use of the words ‘ledgers’ and ‘other accounting records’ do require a judgment to be exercised and the use of the words ‘loan account ledger’ as well as ‘ledger’ in the wife’s submissions is tantamount to an admission of insufficient description.  The same argument is applied to the use of the words ‘other accounting records such as journals’. 

(ii) subpoena to ANZ Bank – objection to part

1. The terms are these:

   (a)      All applications for loans, overdrafts, credit cards, and other financial accommodation by [the husband] born ….1966 or [P] Pty Ltd for the period 1 January 2001 to date.

   (b)      All applications for loans, overdrafts, facilities and other forms of credit made to Australia and New Zealand Banking Group Ltd. (“the bank”) by or on behalf of [R] Pty. Ltd. as trustee for [Allport] Family Trust from 1 January 2001 to date together with any correspondence, notes of attendances upon any person, reports and recommendations in relation to any such applications.

   (c)       Copies of all financial statements of [R] Pty. Ltd. and of [Allport] Family Trust and tax returns of [R] Pty. Ltd. held by the Bank.

   (d)      Copies of all statements of financial position of [the husband], [the wife] and [R] Pty. Ltd. as trustee for the [Allport] Family Trust for any time after 1 January 2001.

1. Objection is not taken to production of certain documents referred to in paragraphs (a) and (d) in so far as they relate to (i) the husband [paragraphs (a) and (d)]; (ii) P Pty Limited [paragraph (a)]; and (iii) the wife [paragraph (d)]. 

2. Set out hereunder is the summary of the objector’s submissions relating to those that remain:

   paragraph (b) - other than those relating to an application for finance made by [R Pty Ltd] in April 2003

   Other than as conceded [April 2003 application for finance produced by ANZ Bank] it is said that no apparent relevance attaching to the remainder has been demonstrated as related to the financial affairs of R Pty Ltd or the Allport Family Trust for the period specified.  Being records of a third party, the submissions add: ‘what may or may not have been the financial position of [R Pty Ltd] and/or the [Allport] Family Trust in that period is not relevant to the determination of an issue in the proceedings.’  

   paragraph (c) – all

   Absent a period being specified, the subpoena requires R Pty Ltd, incorporated in 1976, to produce documents related to a 30 year period which significantly exceeds the length of the parties’ marriage.  Also, being financial records of a third party, it is again submitted that ‘what may or may not have been the financial position of [R Pty Ltd] and the [Allport] Family Trust in that period is not relevant to the determination of an issue in the proceedings.’ 

   paragraph (d) - all so far as they relate to [R Pty Ltd] and the [Allport]  Family Trust

   While documents are sought from 1 January 2001 to date, again it is submitted that the documents have not been shown to have any apparent relevance, relating as the claim does to the financial affairs of R Pty Ltd and/or the Allport Family Trust.  Again this submission is: ‘what may or may not have been the financial position of [R Pty Ltd] and the [Allport] Family Trust in that period is not relevant to the determination of an issue in the proceedings.’ 

3. The submissions for the objectors continue with the proposition that the subpoenae constitute an abuse of process (i) the documents lack apparent relevance and (ii) they are a fishing expedition - Commissioner of Railways v Small (1938) 38 SRNSW 564 at 575 is cited as support for that – and the wife is not endeavouring to obtain evidence to support her case but to ascertain if she has a case at all or to discover the nature of the husband’s evidence. 

4. After the receipt of the wife’s submissions in reply, further submissions were lodged.  At that point some of what has already been said was repeated.  Under the heading ‘financial documents’ paragraphs (b), (c) and (d) of this subpoena and paragraph 6 of the subpoena to the husband’s father attract these submissions.  Given the concession that the husband is neither a director nor shareholder of R Pty Ltd [trustee] and there is no evidence he is an appointor of the Trust, the objection by R Pty Ltd and the husband’s father to the production of financial statements, tax returns and any documents relating to applications for finance by either is well founded [in effect] since they have no apparent relevance to issues in the proceedings and the Trust is not a financial resource of the husband’s.  The decision of In the Marriage of JA & CQ Kelly (No 2) (1981) 7 FamLR 762 is cited for the latter proposition and this passage is quoted:

   ‘….a financial stock or reserve over which a party has sufficient control as a matter of fact to draw upon when necessary towards supplying some financial want or deficiency of the party.’

5. However, as examination of the report of the case shows, that quote is set out by the Full Court as being the definition of financial resource adopted by the trial judge [at p 76,802].  In any event, the submission goes on to contend that as the husband ‘does not exert control over the Trust; has neither legal nor de facto control over the Trust; has no influence over the decision making of [R Pty Ltd]; has no entitlement or control; and has no certainty of receipt of property from the Trust in the future’ the Trust cannot be considered a financial resource of his and therefore the documents sought are irrelevant to the pending proceedings. 

(iii) subpoena to the husband’s father – objection to part

1. The terms of the subpoena:

   1.        All documents comprising any loan agreement or part of any loan agreement between you and […] (“the husband”) in relation to any loan made by you to him, either alone or jointly with any other person since 1 January 2001.

   2.        All bank statements, cheque butts, passbooks, deposit slips and receipts recording any payment made by you in relation to any loan referred to in (1) above and in relation to any repayment of such loan made by the husband since 1 January 2001.

   3.        All documents being any demand made by you for repayment of any loan referred to in (1) above.

   4.        All correspondence between you, or any person on your behalf, and the husband, or any person on his behalf, in relation to any such loans referred to in (1) above.

   5.        All notes of any conversations between you and the husband in relation to the granting, existence or repayment of any such loans referred to in (1) above.

   6.        All correspondence between you and Australia and New Zealand Banking Group Ltd. (“the bank”) in relation to any loans, facilities, commercial bills or other forms of credit provided by the Bank to [R] Pty Ltd as trustee for the [Allport] Family Trust from 1 January 2001 to date.

2. No objection is taken to paragraphs 1, 3, 4, 5.  The remainder, 2 and 6 constitute the dispute although so far as 6 is concerned, no objection is taken to production of an application for finance by R Pty Ltd in April 2003. 

3. Again, it is submitted the disputed documents have (i) no apparent relevance and (ii) the subpoena constitutes a fishing expedition.  Also, it is said to put the husband’s father to unreasonable expense and effort and therefore is oppressive.  More particularly, these submissions are made about the two remaining paragraphs:

   paragraph 2

   This requires the husband’s father to inspect all of the bank statements, cheque butts, passbooks, deposit slips and receipts in his possession or under his control from 1 January 2001 so as to ‘find, collect, collate, marshal and produce’ the specified documents.  The volume of material to be inspected - ‘most of which has no relevance to the proceedings’ – makes the task is unduly onerous and would require the husband’s father to expend unreasonable effort to comply.  The decision in Lucas Industries Ltd v Hewitt (1978) 18 ALR 555 is cited in support.

   paragraph 6

   Again the submission of no apparent relevance is made and again it is said: ‘what may or may not have been the financial position of [R Pty Ltd] and the [Allport] Family Trust in that period is not relevant to the determination of an issue in the proceedings.’

4. Yet in my judgment all these arguments to have the subpoenae [or parts] set aside were appropriately and successfully countered by the submissions put for the wife which I accepted as the more meritorious according to the proper application of principle.  Constituting as they do in the main the reasons for making the decision, they will be outlined shortly, but first something should be said of general principle insofar as it relates to the arguments advanced for the objectors. 

5. There are a number of well known cases and often cited passages from them relevant to the arguments raised here [see also Halsbury’s Law of Australia, Volume 20, commencing 325-7395] and, not being concerned with application to facts in the particular case, the principles that arise are beyond controversy.  A convenient starting point might be this passage from the judgment of Jordan CJ in The Commissioner for Railways v. Small (1938) 38 S.R. (N.S.W.) 564 at 573 [footnotes omitted]:

   ‘A writ of subpoena duces tecum may be addressed to a stranger to the cause or to a party.  If it be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced.  A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter.  It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger to the cause ought not to be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant: Lee v. Angas; Burchard v. Macfarlane; A.-G. v. Wilson; Newland v. Steer. And if a subpoena duces tecum is issued to such a person in an objectionable form, the witness may apply to the Court to have it set aside.
   If duly served with such a writ and provided with the proper conduct money, the person served must obey it and bring to the Court the documents mentioned in the subpoena if he has them, unless he procures the writ to be set aside as oppressive…’

6. A seminal case on the topic is the 1978 decision of National Employers Mutual General Association v Waind & Hill (1978) 1 NSWLR 372, more particularly the judgment of Moffit P. [with whom Hutley and Glass JJA agreed], where his Honour described three distinct steps involved in the production of documents arising from a subpoena duces tecum:

   ‘The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge.  This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena.  The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents.  The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise.  It is the third step which alone provides material upon which ultimate decision in the case rests.  In these three steps the stranger and the parties have different rights, and the function of the judge differs.”

7. In relation to the first step, Moffitt P. went on to say at 381 and following [footnotes omitted]:

   ‘Upon the first step the person to whom the subpoena is addressed may seek to, and have, the subpoena set aside on the ground that it was improperly issued and an abuse of the power to compel the production of documents in any one of a number of ways. Such a case is where the subpoena is used for the purpose of discovery.  The essential feature of discovery in this connection, as appears from Burchard’s case ….and Small’s case …..is that the person to whom the subpoena is addressed will have to make a judgment as to which of his documents relate to issues between the parties.  It is oppressive to place upon a stranger the obligation to form a judgment as to what is relevant to the issue joined in proceeding, to which he is not a party.  Hence it is an abuse of the use of subpoena to impose this obligation.  It follows that it is an abuse to use any subpoena, i.e. even to a party to obtain discovery.  This was the reasoning in Small’s case ….Of course, discovery as such is otherwise available to a party.  It follows that a subpoena can only properly be used for the production of documents described in particular or general terms which does not involve the making of such a judgment.  It does not follow, however, that because the party who issues a subpoena is unaware of the precise description of a particular document, or whether a particular document or documents is in the possession of the witness, or even whether it exists, or is unaware of its contents, that the subpoena, or even a subpoena in general terms, amounts to the use of the subpoena for the purpose of “discovery”.  To state it does involve a misconception of the different functions of discovery and of a subpoena for production.  Of course, it may be that the terms of a subpoena are so wide that it is oppressive, but this is not because it is used for “discovery” in the sense used in Small’s case …and Burchard’s case …but because it imposes an onerous task on a stranger to collect and produce documents many of which can have no relevance to the litigation.  To require the branch of a bank to produce all cheques received by it in a particular year in order to find, if it exists, a cheque of the opponent in a false name would be oppressive, whereas, to require a hospital to produce its file in respect of the medical treatment of the opposing party would not.  It is a misuse of terms to say the person who inspects the latter is using it for the purposes of discovery, because he is unaware of the contents of the documents or some of them.  It is not in point to seek to define the excessive use of the subpoena.  The documents in this case are not such, and the witness itself does not so claim.

   The issue of a subpoena may involve an abuse of the power in other ways and, as stated in Small’s case …objection to production to the court may be on other grounds.  Thus, it would be an improper use of the subpoena if it were not sought for the purpose of the litigation, but for some spurious purpose, such as to inspect the documents in connection with other proceedings, or for some private purpose, or in collusive proceedings to give them publicity.  A witness might argue the documents must be sought for some undefined spurious reason, as they have no conceivable relation to the proceedings.  The court would jealously consider any of such submissions having regard to the invasion of the private rights of the stranger occasioned by the operation of the subpoena.’

8. In discussion of the second step – the inspection stage – his Honour said at 384:

   ‘…So far as factual matters are concerned, the proper conduct of the litigation can only be that which fairly leads to the introduction of all such evidence as is material to the issues to be tried, and the testing of that evidence by the accepted procedures of the court.  The only legitimate purpose of requiring the production, and permitting the inspection, of a stranger’s documents can be to add, in the end, to the relevant evidence in the case.’ 

9. And later at 385:

   ‘The crucial question in relation to the exercise of the discretion to permit inspection in the second step is whether the documents have apparent relevance to the issues.  It is at the third step that questions between the parties of relevance in fact and admissibility are ruled upon.  The judge is in some difficulty in determining whether documents are relevant prior to the presentation of the evidence or at the commencement of the case.  If there is particular objection from the witness, or questions of privacy are involved, no doubt procedures can be adopted to ensure that only relevant documents are inspected.  In other cases, it would appear appropriate to proceed to exercise the discretion, provided the documents are apparently relevant or are on the subject matter of the litigation.  However, the limitation on the exercise of the judge’s discretion to allow inspection is that the document contains information of apparent relevance to the issues.’ 

10. In Lucas Industries Ltd. v Hewit (1978) 45 FLR 174 Smithers J discussed the use and abuse of the subpoena as follows at 189 to 190:

    ‘The purpose of the process of subpoena is to facilitate the proper administration of justice between parties.  For that purpose it is the policy of the law that strangers who have documents may be put to certain trouble in searching for and gathering together relevant documents and bringing them to court.  It is according to the same principle that persons who have knowledge of facts are put to the inconvenience of being brought to court and required to give evidence…
    It would, no doubt, be a good reason for failure to produce documents that the effort and expense involved in doing so was greater than ought reasonably to be required.  This is a matter which would at that stage be capable of rational resolution by the court according to the circumstances.  So far as the effort and expense in arranging for production of particular documents in any case exceeded what was reasonable, their non-production would be acceptable to the court.  But if a subpoena be wholly set aside on the grounds that on its face it is oppressive, then the subpoena wholly fails and there is the possibility that although some or even substantial compliance might have been undertaken with a minimum of effort, the whole procedure may be needlessly frustrated.’

11. In Botany Bay Instrumentation & Control Pty Limited & anor v Stewart & anor [1984] 3 NSWLR 98 Powell J expressed the view that the classes of case in which a subpoena would be set aside might all be seen as abuse of process and were not closed. His Honour said at 100-101:

    ‘Although a reference to the authorities makes it tolerably plain that the court will exercise its undoubted jurisdiction to set aside a subpoena in a variety of cases, as, for example:

    1.        Unless the subpoena was issued for the purpose of a pending trial, hearing or application …

    2.        where to require the attendance of a witness would be oppressive …

    3.        where the subpoena had not been issued bona fide for the purpose of obtaining relevant evidence and the witness to whom the subpoena had been addressed was unable to give relevant evidence …

    4.        where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party …

    5.        where the subpoena has been used for the purpose of obtaining discovery against a third party …

    6.        where to require a party to comply with a subpoena to produce documents would be oppressive …

    7.        where the subpoena has been issued for a purpose which is impermissible, as, for example, “fishing” …

    the authorities do not make clear whether such classes of case to which I have referred above are to be regarded as the only cases in which the court will intervene, or, whether such cases are to be regarded as merely particular examples of a broad class of case in which the court will intervene to exercise its jurisdiction to set aside a subpoena, or, indeed, whether the jurisdiction to set aside a subpoena is but one part of a wider jurisdiction of the court.  It seems to me, however, that when, as one does, one finds assertions that the court’s jurisdiction to set aside a subpoena is but part of the inherent jurisdiction of the court (see, for example, R v Lewes Justices; Ex parte Secretary of State for the Home Department (at 240 per Lord Parker CJ, at 244 per Bridge J, (as he then was)) coupled with assertions that a subpoena will be set aside if it be issued for an impermissible, or illegitimate, purpose, or if to require compliance with it would be oppressive( see, for example, Commissioner for Railways v Small (at 573-575 per Jordan CJ)) it is difficult to avoid the conclusion that, in reality, the court’s jurisdiction to set aside a subpoena is but one aspect of the court’s jurisdiction to act to prevent an abuse of process, and that the particular classes of case which I have recorded above are to be regarded as no more than examples of situations which the courts, in the past, have held, and, in the future, would hold, to be cases of an abuse of process.’

    [see also decision of Powell J in Purnell Bros Pty. Ltd. v Transport Engineers Pty. Limited (1984) 73 FLR 160]

12. In Trade Practices Commission v Arnotts (1989) 88 ALR 90, where oppression was argued as the ground for setting aside the subpoena, Beaumont J considered at 103 that two questions need to be addressed:

    ‘(1)Does the material sought have an apparent relevance to the issues in the principal proceedings, ie, is adjectival, as distinct from substantive, relevance established?  Does the subpoena have a legitimate forensic purpose to this extent?  This involves a consideration of the matter from the standpoint of Arnotts.

    (2)Is the subpoena seriously and unfairly burdensome or prejudicial?  This is to look at the matter from the point of view of Mattingly.’

1. Later at 103:

   ‘The test of adjectival relevance is satisfied if the material has apparent relevance.’

2. Coming then to this Court, the Full Court in White and Tulloch v White (1995) FLC 92-640 at 82,460 appeared to adopt the meaning of ‘relevance’ as being whether the documents were sufficiently likely to ‘add in the end to the relevant evidence in the case’ for which they cited Waind v Hill and National Employers' Mutual General Association Ltd [1978] NSWLR 372, amongst other cases.

3. That leads to the more recent Full Court decision in Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-038. Having canvassed authorities including those mentioned, and noting that Powell J in Botany Bay Instrumentation did not include lack of relevance as a ground for setting aside a subpoena, their Honours rejected the proposition that lack of relevance cannot itself be a ground for setting aside a subpoena but must constitute oppression or abuse of process.  On the contrary, their Honours held that on the state of the authorities subsequent to Waind and Hill, apparent relevance will be a sufficient ground in itself to set aside a subpoena [citing also the decision of the Supreme Court of South Australia in Santos Ltd and Others v Pipelines Authority of SA (1996) 66 SASR 38]. Their Honours added [at 59] that in the absence of pleadings in this Court, the only way in which apparent relevance could be established is by reference to the affidavit material filed in the proceedings.

4. That said, one of the other submissions by the objectors should be addressed directly; namely, the proposition said to arise from Kelly and Kelly (No 2) to the effect that as the husband is but a discretionary beneficiary who does not control the Trust, he has no control over the Trust, he has no influence over decision making of the trustee, and he has no certainty of receiving any distributions the Trust does not constitute for him a ‘financial resource’ and hence certain documents sought are irrelevant to the issues in the pending proceedings.  However, that proposition is not only against the weight of authority but is also wrong as a matter of practicality.  The correct position is that it remains a question of fact depending on the particular circumstances of the case and they can only be examined more closely on the availability of related documents.  A couple of Full Court cases will demonstrate support for that, for example:

   ·    In Bailey and Bailey (1978) FLC 90-424 Evatt CJ and Murray J viewed the benefits which a party might receive under a discretionary trust [or superannuation scheme] as part of the financial resources of a party despite there being no present entitlement to money from the trust [or fund] and despite the extent of any entitlement being dependent on the discretion of the trustee.  At 77,146:

   ‘…If the fund were held in the form of a discretionary trust, which is commonly the case, the husband would strictly have no present entitlement, and his interest would depend upon the exercise of discretion by the trustees.  Neither the date of the exercise of discretion nor (consequently) the amount of the interest can be determined.  If there were a trust, it seems reasonable to take the view that unless any specified disqualifying event were to occur the trustees would eventually exercise their discretion for the benefit of the husband or is dependants …’

   ·    In Kelly and Kelly (No 2) (1981) FLC 91-108; 7 FamLR 762 - the facts are not relevant for present purposes - in coming to their decision their Honours [Evatt CJ, Emery SJ and Nygh J] quoted from Bailey with approval at 76,802 and went on to say at 76,803:

   ‘If a party has full legal control over the resources as was the case of the husband in Tiley and Tiley [(1980) FLC 90 898] in respect of the family company in which he held the sole voting share, the ‘reasonable expectation’ can be easily established.  But it would be wrong to limit the definition to legal control.  As the Full Court indicated in Bailey and Bailey a beneficiary in a discretionary trust who has no legal control over the trustee, but who has reasonable grounds to expect that the discretion will be exercised in his or her favour has to that extent a ‘financial resource’.  This conclusion is supported by the decision of the Full Court in Tiley and Tiley as regards the family trust which the Court found was in fact controlled by the husband.’ 

   Later at p 76,806:

   ‘The financial resource which a person has is not necessarily to be equated with the asset or income from which benefit is derived.  For example, if the rental of a property were regularly paid to a person under a family arrangement, the receipt of the rent may be regarded as a resource of the person concerned, not necessarily the capital value of the property.  It is important, therefore to define what benefit a person has received in the past and what is likely to be received in future.  Where there is factual control, that may enable the person concerned not only to ensure the continuation of past benefits, but also to expand to some extent the possibility of future benefits within the limits of the control, but neither legal or factual control is essential, Moss v. Moss (1867) W.R. 532; Howard v. Howard (1945) P.1.’

   ·    In Goodwin and Goodwin Alpe (1991) FLC 92-192 at 78,273 the Full Court cited with approval this passage from the unreported Full Court decision of Reynolds and Reynolds, delivered 27 April 1990:

   ‘…we emphasise that the question whether the property of the trust is, in reality, the property of the parties or one of them, or a financial resource of the parties or one of them, is a matter dependent upon the facts and circumstances of each particular case including the terms of the relevant Trust Deed.’

5. Accordingly, the financial statements along with other documents referable to a discretionary Trust of which one party is a beneficiary are relevant to ascertaining the facts which in turn are relevant to ascertaining whether that party has either property or a financial resource - and legal control is unnecessary.  If, for example, there have been distributions to the particular beneficiary but unpaid or lent back to the Trust one would expect to find that reflected in the beneficiary’s loan account and it would constitute an asset of the beneficiary’s.  Or there may be a history of benefaction over past years and that may be seen as constituting a financial resource available to the beneficiary depending on the facts and circumstances of the particular case. 

6. I come now to the substance of the wife’s submissions which present sound arguments for rejecting those of the objectors’ to the effect that the subpoenae constitute discovery, or are a fishing expedition, or are of no apparent relevance, or by their terms are too wide or make compliance oppressive. 

7. Generally the submissions urge the rejection of the arguments about lack of apparent relevance and contend that the documents sought here satisfy a higher test of ‘actual relevance’ to issues in the proceedings [White and Tulloch v White and Hatton v Attorney General Commonwealth of Australia & Ors cited in support].  A summary of the submissions referable specifically to the objections taken on each subpoena follows.

(i) ANZ Bank

paragraph (b)

1. Relevance is said to be established by the husband’s evidence.  In paragraph 44 of his affidavit sworn 19 June 2007 he refers to a property being acquired in Brisbane in a joint venture arrangement with his brother around April 2001 and that he, the husband, had set up the company P Pty Limited for that purpose.  He swears that his father suggested the purchase and he offered to ‘help …with the deposit’.  In paragraph 46 (b) he refers to the purchase price of the property being $1.2 million and that his father or R Pty Ltd paid the 5% deposit, the stamp duty and legal fees.  Then in paragraph 53 he swears that the advance from his father for the deposit and stamp duty came from his father ‘as a loan’.  In paragraph 54 he concludes: ‘Accordingly, I believe that my debt to my father is, in real terms, 50% of the aggregate of the sums advanced by him…’  In other words, it is his case that either he or P Pty Ltd owes either his father or R Pty Ltd half of the deposit, stamp duty and legal costs related to the purchase of the Brisbane property.  It is said that the nominated date of 1 January 2001 is not long before the time of purchase nominated by the husband and it is reasonable to conclude either he or his company came to the agreement on the topic, either with his father or with R Pty Ltd, within that timeframe.  It is said that the loans are not admitted by the wife and the husband’s own evidence about the arrangement seems uncertain as to the parties to the arrangement.  Loan applications to the Bank by R Pty Ltd are relevant to establishing whether R Pty Ltd was a party to the loan.  Moreover, it is said that if the company made representations to the Bank to the effect it has an asset [being the result of a debt owed by the husband or his company] then that is relevant to the issue of the existence of the loan.  If no loans are listed as an asset of the company then it would support a submission that no such loan exists.  The other documents sought may also be expected to make reference to loans being an asset of the company’s. 

   paragraph (c)

2. The submission is to the effect that the financial statements of R Pty Ltd and its tax returns are relevant to showing whether the company has recorded in its financial statements an asset being a debt owed to it by the husband or P Pty Ltd or by the husband and wife jointly.  Relevance is also supported by further reference to the husband’s evidence.  That is to say, at item 46 of his financial statement sworn 7 July 2006 he swears to being liable as to 50% of $5.2 million to R Pty Ltd [$2.6 million].  It is submitted this appears to be a reference to a mortgage on a property at M referred to in item 35 of his financial statement, which is a property jointly owned by the husband and the wife.  Accordingly, he appears to be representing that he has a liability for half of the total mortgage liability but the borrower was R Pty Ltd, which presumably then lent the funds to the husband and wife so it becomes their liability pursuant to the mortgage.  If this is not the proper interpretation, the husband’s evidence at item 46 of his financial statement is difficult to decipher.  Nonetheless, that evidence makes it necessary to subpoena the financial statements of R Pty Ltd to ascertain whether this liability is identified, the amount involved, and the parties nominated in the financial statements of the company as the person/s responsible for repayment.  If the interpretation given to his evidence at item 46 is correct, the transaction could be expected to be reflected in the company’s Balance Sheet as an asset as a loan repayable by the husband and the wife for $5.2m.  Similarly the company’s tax return, through the assets listed in the Balance Sheet, should reflect the debt owed by the husband and wife to the company.  Relevance is reinforced by reference to the husband’s further sworn evidence at paragraph 72 of his affidavit [where he discusses loans through R Pty Ltd as trustee related to the purchase of a property at H and includes reference to some history of a $5.2 million facility].  In summary, the documents sought relate to alleged liability to R Pty Ltd and that is relevant to issues raised by the husband in his evidence. 

3. It is also pointed out that in paragraph 46(b) of his affidavit where the husband refers to R Pty Ltd he made no reference to the company acting in its capacity as trustee which is at odds with references made elsewhere to the company; hence, it can be inferred he is referring there to the company acting in its own capacity.  That is the reason for the subpoena not limiting the documents sought to the company acting in its capacity as trustee. The husband’s evidence rendering the documents sought relevant, it is not for the wife to know when R Pty Ltd commenced advancing moneys and so no time was stipulated.  In the first set of submissions for the wife it was said that there was no evidence to support a finding that compliance would be oppressive and after the husband’s father’s subsequent affidavit was received it was said that there was nothing in that to make compliance oppressive or over-burdensome. 

   paragraph (d)

4. It was submitted that the relevance of the documents to which objection was taken here also arises from the husband’s evidence concerning the advance by R Pty Ltd to pay deposit and costs related to the purchase of the Brisbane property.  If it was the husband’s intention in paragraph 46(b) to refer to R Pty Ltd not in its own capacity but as trustee then statements of the financial position of the company from January 2001 – that time frame having been explained earlier – are relevant to issues in the proceedings.  Also, as it is the husband’s evidence that the company has advanced funds for the purpose stated by him and to fund the purchase of the H property [paragraph 72], the documents requested in this paragraph are relevant to that evidence since loans by the company as trustee should be reflected as assets of the company’s financial statements.  Added to that, in his financial statement sworn 7 July 2006 the husband records at item 57, dealing with financial resources, that he has an interest as discretionary beneficiary in the Allport Family Trust, adding ‘nil distribution’ which implies he has not received any distribution from the Trust at any time.  In his later financial statement sworn 19 June 2007, again at item 57, he repeats this same information.  The documents sought therefore are relevant to an enquiry about the prospect of him having a beneficiary’s loan account and to demonstrate the history of any distributions he has received.  Being a discretionary beneficiary, it is necessary to obtain the facts in order to assess whether the Trust constitutes for him a financial resource. 

5. In summary, all of the documents to which objection is taken easily satisfy the test of apparent relevance since they can all be demonstrated to have actual relevance in light of the husband’s own sworn evidence.  I accepted that. 

(ii) R Pty Ltd

1. It is submitted that paragraphs 44, 46 and 54 of the husband’s affidavit present a confused picture of the identity of parties to the loans he alleges in so far as they relate to the deposit and costs of purchasing the Brisbane property.  This renders the documents in (a) relevant and necessary.  If the company did advance money to the husband by way of loan, it is reasonable to expect there to be an agreement in writing or at least an item of correspondence or a Minute of the meeting where it was discussed and resolved or a note of some kind about it.  If there was no advance, then there will be no documents to produce.  Again, attention is drawn to item 46 of the husband’s financial statement sworn 7 July 2006 swearing to a total loan of $5.2 million, the borrower being identified as R Pty Ltd although he is silent as to whether this is in the company’s own right or in its capacity as trustee.  Assuming the reference to AA and MA at item 46 is a reference to himself and the wife, it leads to the view that if the company lent them $5.2 million it is again reasonable to expect there to be a loan agreement or documents similar to those already identified, having regard to the large amount involved.  Again, this renders the documents sought relevant to issues in the proceedings. 

2. The absence of a time limit in paragraph (a) is explained by the need to ascertain the history of loans the company made to the husband since the availability of loans would be a financial resource to him.  Again the initial submissions before the husband’s father’s affidavit asserted compliance could not be seen as oppressive and that was repeated in the later submissions after the availability of the affidavit. 

   paragraph (b)

3. Again it is said relevance has been easily established by reason of the husband’s evidence.  If loans exist, as he swears, there must be documents of the kind identified recording the transactions.  As for the meaning of the word ‘ledger’ there could be no reasonable doubt about that and if his evidence is correct it is reasonable to expect there would be appropriate entries in a loan account to be found in a ledger setting out any advance and repayment.  It would also be reasonable to see the transaction reflected in the assets of the Balance Sheet of the company or in any corresponding notes.  Other accounting records such as journals would also reflect any such transactions.  Again it is said that the availability of loans, and their terms, is relevant to considering if the husband has financial resources.  Oppression could not be argued without any evidence to support that finding and after the receipt of the husband’s father’s affidavit the later submission was made to the effect that nothing in it established oppression or undue burden. 

   paragraphs (a) and (b)

4. The argument that the subpoena is a ‘fishing expedition’ was rejected: the subpoena identifies specifically the documents requested; the company is said to have made loans to the persons referred to and should have no difficulty identifying and locating the relevant documents; the husband’s sworn evidence makes them relevant to the issues involved; and it cannot be said the existence of documents is merely speculative.  It is also submitted that the claim of the subpoena being too wide is unsustainable given the specific nature of the documents requested. 

(iii) The husband’s father

1. As for the objectors’ submission about lack of apparent relevance, attention is drawn again to the husband’s financial statement sworn 7 July 2006, in this instance to item 53 where he deposes to owing his father an estimated $727,000 and also to his later financial statement sworn 19 June 2007, item 53, where he deposes to the debt to his father having risen to $875,604.  In the former financial statement he alleges by necessary implication the debt is all his; in the latter, he states the debt is owed by himself and his wife equally.  In the second financial statement, item 53, he refers to ‘additional loans’ advanced by his father since August 2006 to May 2007 ‘and escalating as per annexure H1 and subject to further calculation and verification by Husband’.  The amount said to be owed at the time was $226,911.  In his affidavit sworn 19 June 2007 he refers to debts or loans between himself and his father at paragraphs 44, 46(b), 53, 54, 66, 109 and 110.  The date of 1 January 2001 is chosen by reason of the husband’s evidence of money being borrowed to pay the deposit and costs to purchase the Brisbane property in April 2001.  As noted earlier, the argument is that there must have been an earlier agreement about the transaction.  The husband gave no particulars of the dates on which he contends loans were made by his father. 

2. Liabilities of the parties are relevant to the property proceedings and the husband is contending there are substantial debts to his father.  The documents sought are plainly relevant.  Also, the absence of any records will reflect upon the husband’s credibility, particularly in circumstances where no affidavit has been filed in the proceedings by his father to corroborate his sworn evidence of loans. 

3. On the question of supposed oppression, the wife’s submissions drew attention to paragraph 110 of the husband’s affidavit where he swears to having perused a Statement of Claim filed by his father in proceedings in another Court seeking recovery from him of $975,604.  To bring such a claim, it was submitted, the husband’s father must have searched his documents to obtain the necessary evidence of payment of moneys said to comprise the loans about which he is suing his son.  In the circumstances it cannot be reasonably said that production of the documents identified would be onerous or constitute oppression. 

   paragraph 6

1. These documents relate to the financial position of R Pty Ltd as trustee which is relevant to the question of whether or not the company at any time in that period had as an asset a loan owed to it by the husband for the amounts paid out for the Brisbane property and any other loan it may have made to the husband from time to time as well as the history of any distributions to the husband as a discretionary beneficiary.  Any representations by the husband’s father in correspondence with the Bank about finance obtained by the Trust is relevant to examining the financial position of the Trust and correspondence between the husband’s father and the Bank is also relevant to ascertaining if he made any statement to the Bank about the terms on which R Pty Ltd as trustee was advancing to the husband and wife any money obtained through a facility provided by the Bank. 

2. The husband’s sworn evidence about the financial relationships between his father, R Pty Ltd and himself and the wife together with the documents exhibited to his affidavit gives all of the documents identified actual relevance to the pending proceedings and the test of apparent relevance is easily satisfied and no proper ground of objection has been made out.  Nor is there anything in the affidavit of the husband’s father to render compliance oppressive or unreasonable. 

3. To conclude, in my judgment these submissions were meritorious having regard to the circumstances apparent from the material relied upon.  I was unable to find any ground sufficient to set the subpoenae or any part of them aside.  On the contrary, I found the documents required to be produced to have at least apparent relevance to the issues in the substantive proceedings; they did not constitute discovery in the sense that they call for the recipient to exercise a judgment about what is relevant to issues between the parties in those proceedings; they were sufficiently described; and, putting the parties and the objectors in a practical context, it could not be said that what was sought constituted oppression or was unnecessarily burdensome. 

4. For those reasons the review of the Registrar’s decision was dismissed although the orders extended the time for the objectors to comply. 

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate: 

Date: