Belmonte and Borghi

[2019] FamCA 150

FAMILY COURT OF AUSTRALIA

BELMONTE & BORGHI [2019] FamCA 150

FAMILY LAW – PRACTICE AND PROCEDURE – SUBPOENA OBJECTION – Application for Review of Registrar’s order – Where Registrar granted leave for access to documents produced on subpoena for which Objections were filed – Where Application for Review dismissed – Where costs reserved to final hearing.

Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905

APPLICANT: Mr Belmonte

RESPONDENT: Ms Borghi

FILE NUMBER: PAC 2904 of 2018

DATE DELIVERED: 18 March 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 19 February 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms El Ali of Thurlows Family Lawyers

SOLICITOR FOR THE RESPONDENT: Ms Diaz of KPL Lawyers

Orders

1. That the Application filed 6 December 2018 seeking review of the Registrar’s Orders made 30 November 2018 is dismissed.

2. Costs of and incidental to the application reserved to final hearing.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Belmonte & Borghi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2904 of 2018

Mr Belmonte

Applicant

And

Ms Borghi

Respondent

REASONS FOR JUDGMENT

1. The primary proceedings are proceedings for property adjustment under section 79 of the Family Law Act 1975 (Cth) (“the Act”) commenced by the husband by application filed 27 June 2018.

2. The application asserts that the parties were married in 2002.

3. There are two children of the parties’ relationship now aged nearly 16 and 14.

4. The applicant husband seeks orders for the sale and division of the sale proceeds of a property jointly owned by the parties at Suburb C.

5. On 23 October 2018 the husband filed an amended application seeking similar property orders but in addition seeking:

   a)a declaration that the parties’ marriage solemnised in Italy in 2002 be declared a valid marriage, or in the alternative;

   b)a declaration pursuant to section 90RD of the Act that the parties were in a de facto relationship from 1996 to February 2017.

6. The respondent wife filed a Response on 25 October 2018 seeking orders that, in summary, provide:

   a)That the wife’s application be dismissed with costs, or in the alternative;

   b)That there be a declaration that the parties were in a de facto relationship from 2001 to 2007.

7. On 25 October 2018 Hannam J made trial directions as to the threshold issue of jurisdiction either by way of marriage or the existence of a de facto relationship such as to attract jurisdiction. The matter was anticipated to take two days for trial and is listed for hearing commencing 20 June 2019.

8. In forensic preparation for trial the husband issued various subpoenas to various retail and financial institutions seeking, in summary, to demonstrate financial interdependence as one characteristic of the parties’ ongoing relationship. The subpoenas seek documents beyond the separation date asserted by the husband of February 2017.

9. It is common ground that the relevant documents have been produced to the Registry.

10. The wife objected to the inspection of such documents asserting that until the Court determines jurisdiction the husband has no right to seek disclosure from her or the production of documents on subpoena.

11. The Rules delegate the power of this Court to a Registrar to exercise power under the Rules as to subpoenas.

12. A Registrar on 30 November 2018 dealt with the wife’s objection to the subpoenas and relevantly ordered that the husband have access to the wife’s documents produced subject to the wife being able to redact documents relating to the period post the asserted separation date of February 2017.

13. The husband filed an application on 6 December 2018 seeking to Review the Registrar’s determination in that the orders of the Registrar be set aside and he have access to all documents produced notwithstanding that some postdate his asserted separation date. The application is to be determined as a hearing de novo. Both parties provided written submissions.

14. It is readily apparent that documents relating to the period of asserted cohabitation are relevant to the issue for determination. It is not readily apparent or indeed apparent at all why documents after the asserted separation date are relevant.

Apparent Relevance

1. In Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905 McClelland J set out a useful analysis of the well settled relevant legal principles (footnotes omitted):

   26.The power of the Court to issue a subpoena is set out in Part 15.3 of the Family Law Rules 2004 (Cth) (“the Rules”). Equally, the Court has power to set aside a subpoena so issued: Hatton v Attorney General of the Commonwealth of Australia & Ors (2000) FLC 93‑038 (“Hatton”).

   27.The relevant stages of subpoenaing a third party to produce documents to the Court were described in Hatton at [38], by reference to National Employers’ Mutual General Association v Waind and Hill [1978] 1 NSWLR 372, as being a three step process:

   The first [step] 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…This application by the applicant  companies concerns the first step referred to in Hatton (supra)….

   28.Rule 15.26 relevantly enables a person or entity named in the subpoena to apply for an order that the subpoena be set aside in whole or in part (r 15.26(1)(a)).

   29.Further, r 15.26(1)(c) enables  a person or entity to which a subpoena is addressed to seek “to be paid for any loss or expense relating to …the production of a document in compliance with the subpoena”.

   30.A subpoena must only be used for a legitimate forensic purpose. In considering this issue, it is unnecessary for the party issuing the subpoena to establish actual relevance. However, the party issuing the subpoena must “demonstrate [that] the documents have an apparent relevance to the issue or issues before the Court and in respect of which the subpoena was filed”.  (emphasis added)

   31.In that context, it is not enough for a party seeking to uphold a subpoena to show that the documents might lead to “a train of inquiry” which might assist his or her case.  This is to be distinguished from the process of discovery where such a motive may be permissible. 

   32.While it is the case that the bar for establishing relevance is not high,  the party seeking to rely upon the subpoena must nonetheless establish that it is “on the cards” that the documents would bear upon and have relevance to the issues in the substantive proceedings. 

   33.Expressed in the reverse, it is not legitimate to issue a subpoena on the basis of “an outside chance” that something useful might turn up in the documents. 

   34.A subpoena may also be at risk of being set aside if its terms are so wide that “…it imposes an onerous task on a stranger [to the litigation] to collect and produce documents many of which have no relevance to the litigation”. 

   35.In terms of “fishing”, it is not legitimate for a party to issue a subpoena with a view to determining whether the issuing party has a case at all. 

   36.In Unitingcare – Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476, Coleman J undertook a useful analysis of the relevant authorities and noted at 85,857:

   There is a material distinction between seeking production of documents which, if they exist, can be readily identified and produced in circumstances where such documents may be admissible in evidence, and seeking the production of unspecified documents in the hope that, when produced, they may reveal something capable of being admissible in evidence. The former course is permissible according to general law, and… the Act. The latter offends both.

   37.In that same context, in Ryder & Lee [2009] FamCA 531, Burr J adopted the following passage from the decision of Gray J in Andrew Garrett Wine Resorts v National Australia Bank Ltd (No. 6) (2005) 92 SASR 419 wherein his Honour said at 428:

   It is not enough for the party issuing the subpoena to raise a speculative possibility that the documents sought would assist the resolution of the dispute. The party supporting the subpoena must demonstrate that the documents sought in the subpoena are of real relevance to the issues in the case. It must be more than an outside chance that something useful might turn up in the documents.

   38.In summary, it is not enough for a party issuing the subpoena to raise a “speculative possibility” that the documents sought would assist the resolution of the dispute. While the bar is not high, the party supporting the subpoena must demonstrate that the document(s) sought in the subpoena are of an “apparent relevance” to the issues in the proceedings. It must be more than “an outside chance” that something useful might turn up in the documents.

   39.To avoid being set aside as merely “fishing”, or as being oppressive, a subpoena must specify with reasonable particularity the documents which are required to be produced.

2. The nature of the documents sought clearly have apparent relevance to the issues for determination as to one of the indicia of the parties’ asserted relationship.

3. The extent of the sphere of relevance is shaped by the issues for determination. As to whether documents are ultimately admitted into evidence at trial is a separate question. Such issues relate to the parties’ relationship as asserted by the husband only until February 2017.

4. In the circumstances the Order made by the Registrar is proper.

5. The Application for Review will be dismissed. An order will be made accordingly.

6. The question of costs will be reserved to final trial.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 18 March 2019.

Associate: 

Date:  18 March 2019