BREBNER & SHARDLOW
[2019] FamCA 800
•31 October 2019
FAMILY COURT OF AUSTRALIA
| BREBNER & SHARDLOW | [2019] FamCA 800 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Review of a registrar’s decision – Subpoenas – Where the registrar rejected two subpoenas for filing on the basis that they appeared to be an abuse of process, frivolous, scandalous or vexatious – Consideration of whether the production of documents serves a legitimate forensic purpose and whether “it is on the cards” that the documents sought would have relevance to the issues in the case – Where the Court is satisfied that a subpoena proposed to be addressed to the wife’s solicitor would serve no legitimate forensic purpose and would amount to a “fishing expedition” – Where it is on the cards that a document produced in response to a proposed subpoena addressed to the husband’s father could have some relevance to issues in the case – Application for review granted in part. |
| Family Law Act 1975 (Cth) s 79 Family Law Rules 2004 (Cth) r 24.10 |
| Alister v The Queen (1984) 154 CLR 404 Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905 Hatton & Attorney General of the Commonwealth of Australia & Commonwealth Bank of Australia & Commonwealth Development Bank of Australia (2000) FLC 93-038; 26 Fam LR 570 Hennessy v Wright (No. 2) (1890) 24 QBD 445 Hunt v Russell and De Pinto (1995) 63 SASR 402 Hunter & Child Support Registrar [2017] FamCAFC 259 Kelton & Brady and Anor [2017] FamCAFC 186; (2017) FLC 93-799 R v Saleam [1999] NSWCCA 86 Trade Practices Commission v Arnotts Ltd and Ors (No. 2) (1989) 88 ALR 90 |
| APPLICANT: | Ms Brebner |
| RESPONDENT: | Mr Shardlow |
| FILE NUMBER: | SYC | 1856 | of | 2017 |
| DATE DELIVERED: | 31 October 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney in Chambers |
| JUDGMENT OF: | Loughnan J |
Orders
Insofar as it seeks to review a decision of a registrar to refuse permission for the issue a Subpoena to Produce addressed to Mr A Shardlow, the husband’s Application in a Case filed on 10 September 2019 is granted and the subpoena may issue.
Otherwise the Application in a Case is dismissed.
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 Brebner & Shardlow 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 SYDNEY |
FILE NUMBER: SYC1856 of 2017
| Ms Brebner |
Applicant
And
| Mr Shardlow |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is the application of Mr Shardlow (“the husband”) to review the decision of a registrar to refuse permission for the issue of two subpoenas to produce documents. The application is granted as to one subpoena and it is otherwise dismissed. What follows are the reasons for that decision.
Background
There are proceedings before this Court between Ms Brebner (“the wife”) and the husband in respect of issues arising from the breakdown of their marriage. Relevantly they include proceedings for property settlement.
On 27 August 2019 the husband sought that subpoenas to produce documents issue to the following persons:
(a)Diana Perla of Diana Perla & Associates; and
(b)Mr A Shardlow.
On 3 September 2019 the subpoenas were rejected pursuant to rule 24.10(1)(e) of the Family Law Rules 2004 (Cth) (“the Rules”). That provision permits the rejection of a document which on its face, appears to the registrar to be an abuse of process, frivolous, scandalous or vexatious.
On 12 September 2019, I made the following orders in chambers:
1.The Application in a Case filed 10 September 2019 seeking a review of a decision of a registrar to refuse to issue subpoenas will be heard in chambers.
2.Any further evidence or written submissions on which either party seeks to rely is to be filed and served within 14 days from this date or such greater period as the parties may agree on and notify to the chambers of Justice Loughnan.
The parties’ submissions were lodged on 26 September 2019.
The Relevant Law
The review of the decision of a registrar proceeds by hearing de novo (r. 18.10 of the Rules). Therefore I am to consider afresh the husband’s application for permission to issue the subpoenas. Given that the question of permission for the issue of subpoenas is heard afresh by me, there is no particular relevance to the basis on which the registrar refused permission.
Except in proceedings for interim, procedural, ancillary or other incidental orders, a subpoena will only issue at the request of a party with the Court’s permission (r 15.17 of the Rules).
For completeness, the rejection of documents submitted for filing is addressed in r 24.10 of the Rules, as follows:
(1) A Registrar or judicial officer may reject a document filed or received for filing if the document:
(a) is not in the proper form in accordance with these Rules;
(b) is not executed in the way required by these Rules;
(c) does not otherwise comply with a requirement of these Rules;
(d) is tendered for filing after the time specified in these Rules or an order for filing the document;
(e) on its face, appears to the Registrar to be an abuse of process, frivolous, scandalous or vexatious;
(f) is tendered for filing in connection with a current case in a registry that is not the filing registry (see rules 22.10 and 24.09); or
(g) is sent for filing through the Internet and the person sending the document has not complied with the court’s electronic filing procedures.
(2) If a judicial officer rejects a document filed or received for filing under subrule (1), the judicial officer may give directions about any step already taken on the document, including a direction about costs.
(3) A person may apply for review of a Registrar’s decision under subrule (1) or directions given by a judicial officer under subrule (2) by filing an Application in a Case without notice.
Note: When a document sent for filing by electronic communication through the Internet is rejected, the court may notify each party to the case and each person to whom the document is directed.
Subpoenas to produce documents represent an order under penalty, usually made without notice to the proposed addressee, requiring the production of documents to the Court. They impose a solemn obligation, usually on a stranger to the litigation and can require onerous and immediate action by that third party. In light of those circumstances, the issue of subpoenas remains a matter for the Court, there are restrictions on how and when subpoenas may be issued and there is particular scrutiny of their terms. For example, the Court’s permission is required for the issue of subpoenas in final proceedings or for the issue of subpoenas in any proceedings at the application of a litigant in person.
The Proposed Subpoenas
The subpoena proposed to issue to Diana Perla
Diana Perla is the solicitor for the wife. The subpoena proposed for issue to her would have sought the production of the following:
1. A copy of the subpoena
2.A copy of all documents including but not limited to letters, emails, file notes and memoranda recording any and all legal advice provided by any person to Ms Brebner in relation to:
2.1any claim, demand or assertion made by or on behalf of Mr Shardlow for Ms Brebner to pay to Mr Shardlow rent or an occupation fee in respect of her occupation of D Street, Suburb E; and/or
2.2the payment of any rent or an occupation fee in respect of her occupation of D Street, Suburb E,
For the period 1 July 2014 to the present date.
Discussion
In relation to this proposed subpoena it is submitted for the wife that the subpoena does not seek documents that would be relevant to the proceedings. It is also submitted that any documents would be plainly privileged but that the contention about that and an asserted waiver of privilege by the wife could and should await the issue arising in the proceedings.
It is submitted for the husband that:
·it will be argued on his behalf in the substantive property settlement proceedings, that there should be no adjustment of property in the wife’s favour. That outcome will apparently be argued at least in part on the basis that the wife has had the use and the husband has been denied the use of a property at Suburb E, which he will assert is his principal asset;
·since May 2017 he has requested or demanded of the wife that she pay rent or compensation (presumably to him) for her occupation of the property or that she agree to the property being sold;
·in the substantive proceedings the wife seeks to receive the Suburb E property, free of encumbrance, upon a payment by her of $650,000. The husband is aggrieved that the wife has neither tendered that sum to him or agreed to a sale of Suburb E;
·in proceedings between the parties for child support a finding was made by the Administrative Appeals Tribunal that: “the child support assessment was unjust and that the benefit to the wife of occupation of the D Street property, in respect of the husband’s share thereof was $50,000 per annum, and that it cost the husband $95,000 per annum before tax to bear that burden.”
·the husband complained in the child support proceedings that the wife is in occupation of the Suburb E property which has:
·“a rental value exceeding the maximum amount of child support assessable; and
·an economic cost to the husband that is even greater (which the husband has deposed to in these proceedings)”;
·on 6 February 2018, the wife filed her Response in the child support proceedings and at paragraph 22 of Annexure A to the Response the wife asserted that her “legal advice has been that the rent is not payable” and that she was the one who “initiated the process toward property settlement”.
It is submitted on behalf of the husband “that it is ‘on the cards’ that the advice and instructions forming the basis of it will record admissions relevant to issues with respect of both the conduct and collateral use of these proceedings to obtain a benefit for which s 79 was not designed, as well as admissions relevant to the underlying issues in the financial dispute”.
In Kelton & Brady and Anor (2017) FLC 93-799 the Full Court of this Court noted that it had previously been established that a proper basis for objecting to a subpoena is that the documents do not have “apparent relevance” to the issues in the proceedings.[1] It was further explained at [16]:
In so holding for the purposes of proceedings in the Family Court, the Full Court in Hatton, above, cited with approval what was said by Beaumont J in Trade Practices Commission v Arnotts Ltd and Ors (No 2):[2]
… 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 person at whose request the subpoena was issued].
[1] Kelton & Brady and Anor (2017) FLC 93-799 at [15] citing Hatton & Attorney General of the Commonwealth of Australia & Commonwealth Bank of Australia & Commonwealth Development Bank of Australia (2000) 26 Fam LR 570.
[2]Trade Practices Commission v Arnotts Ltd and Ors (No 2) (1989) 88 ALR 90, 103.
A phrase often used to describe the test for relevance is, whether it is “on the cards” that some useful material to support the issuer’s case will be found within the description in the subpoena.[3] Therefore I am to consider the proposed subpoenas in that light.
[3] See for example R v Saleam [1999] NSWCCA 86 at [11]; Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905 at [32].
In my view it could not be relevant to the substantive proceedings that the wife has been advised that there is no rent payable in respect of the Suburb E property. Indeed on the submissions to which I have referred, that was apparently never asserted by the husband. I was not told that it is asserted now. On the basis of the information before me, no lease or other formal or informal agreement is asserted that could create a rental obligation. The statement in the wife’s child support Response that has excited the attempt to access privileged communications, seems to address an allegation that has not been made.
On the basis of the details provided in the husband’s case, it may be that the husband’s reference in child support proceedings to a “rental value” for Suburb E has led to a tangential reference in the Response filed by the wife in child support proceedings about the fact or otherwise of a rental obligation. Whatever the genesis of the reference to advice, it is not on the cards that advice given to the wife by her solicitors to the effect that she has no rental obligation in respect of her occupation of the Suburb E property or any documents associated with such advice, would be relevant to the parties’ property settlement proceedings.
As to the asserted relevance of the advice in respect of “the conduct and collateral use of these proceedings to obtain a benefit for which s 79 was not designed”. The subpoena would fall into the category of fishing.
Subpoenas must not be used for the purpose of fishing for information that the party at whose application the subpoena issued, hopes, but does not reasonably expect, is in existence. In Hunt v Russell and De Pinto (1995) 63 SASR 402 it was considered by Perry J whether a fishing complaint should be determined with reference to the documents produced. It was stated at 408:
Furthermore, I do not think that in a case where the objection taken is that the subpoena, or part of it, is ”fishing”, the appropriate procedure is for the judge at the outset to take the documents into his or her custody and then to peruse them to see if any of them might be relevant to the proceedings. To countenance such a course would be simply to pass the fishing rod to the judge.
…
Generally speaking, a complaint that a subpoena is ”fishing” should be determined by reference to the judge’s knowledge and understanding of the case and the description of the documents in the subpoena.
Further discussion continued at 409 as follows:[4]
In my view, consistent with the dicta to which I have referred in Alister, a mere ”fishing” expedition should not be allowed, and before a court should proceed to inspect the documents sought to be produced, it must be ”on the cards” that the documents ”will materially assist the defence”, or, having regard to the terms of s 25 of the District Court Act, it must be ”on the cards” that the documents sought to be produced will be of ”evidentiary value” in the proceedings.
If that test is satisfied, the subpoena is not to be characterised as “fishing” and will not be struck out as bad.
If the subpoena is bad as a mere ”fishing” exercise, the court does not have to deal with any objection based on public interest immunity, legal professional privilege or statutory immunity from production. The subpoena is struck out before the stage is reached at which any such objection falls to be considered.
On the other hand, if the subpoena is not bad as ”fishing” or otherwise vexatious or oppressive, objections based on public interest immunity, legal professional privilege or statutory immunity from production then fall to be considered. Whether or not, during the course of consideration of any such grounds of objection, the court should view the documents, is a question to be approached in the manner identified in Alister.
[4] See Alister v The Queen (1984) 154 CLR 404.
In HennessyvWright (No. 2) (1890) 24 QBD 445 at 448 Lord Esher described the conduct which subsequently gave rise to the concept of a “fishing expedition” as occurring where:
“… the plaintiff wishes to maintain his questions, and to insist upon answers to them, in order that he may find out something of which he knows nothing now, which might enable him to make a case of which he has no knowledge at present.”
In Hunter & Child Support Registrar (2017) FLC 93-799 the Full Court referred to the observations of Wigney J in Gloucester Shire Council v Fitch Ratings Inc [2016] FCA 587 (“Fitch”) as follows:
… A finding of “fishing” amounts to a finding that the subpoena has no legitimate forensic purpose because the documents are sought to discover if the issuing party has a case, not to support a case that has already been articulated: Commissioner for Railways v Small [1938] NSW St Rp 29; (1938) 38 SR NSW 564 at 574.
As Wigney J also observed in Fitch there is a connection between a conclusion that a subpoena is a fishing expedition and the question of oppression. Wigney J observed (at [24]):
… A finding of “fishing” also appears to involve a question of oppression. A subpoena will be more readily set aside if greater numbers of documents are required to be produced in circumstances where it cannot be demonstrated that they are likely to be sufficiently relevant…
The husband’s intention for the subpoena in this aspect is apparently to discover something that would confirm his suspicion that the wife is using the current arrangements for the Suburb E property and the delays in the property settlement proceedings, for a collateral purpose - as an instrument of oppression against him. There is no evidentiary basis for asserting a link between the advice referred to by the wife and such a purpose.
In my view, as to this aspect, a subpoena in the proposed form would represent a “fishing expedition” and would be set aside. Permission will not be given for the subpoena to issue.
Conclusion
On the above bases the subpoena to the wife’s solicitor should not issue and the review failed.
The subpoena proposed to issue to Mr A Shardlow.
Mr A Shardlow is the husband’s father. The subpoena he seeks be issued to his father would seek the production of the following:
1.a copy of the subpoena;
2.a copy of your last will and testament and any codicils in relation to the same.
Discussion
In relation to this proposed subpoena, the parties’ submissions are at cross-purposes. It is submitted for the wife that the subpoena is aimed at challenging the evidence of the husband’s father, given in the wife’s case, that he and his late wife gave $200,000 to the parties in 2005. The submission runs, that the last will of the husband’s father could not be relevant to that issue.
However, it is apparent from the submissions filed on behalf of the husband that his intention in having the subpoena issue, relates to the respective prospects of the wife, the children and the husband from the estate of the husband’s father and thereby to the decision about whether there should be a property settlement and if so, the identification of a just and equitable settlement of property.
It is submitted for the husband that:
·the husband contends in the proceedings that the wife and/or the parties’ children will likely receive a bequest from the estate of the husband’s father, upon his death. The husband further contends that he will not receive such a bequest;
·the wife seeks a 15 per cent adjustment in the property settlement proceedings based in part on her need to provide continuing care for the children for the next 10 years, despite the children being 17 and 15 years of age respectively;
·the husband’s father is 82 years of age and it is asserted that relevant life tables would give him a life expectancy of 85.3 years;
·the document/s sought by the subpoena would have apparent relevance to the wife’s property settlement claim because “the wife asserts an ongoing need to support children who will soon be adults and it is ‘on the cards’ that the wife and/or those children will benefit from Mr Shardlow’s estate and to the exclusion of the husband”;
·on that basis the subpoena cannot be said to be too wide, oppressive or fishing, nor that it would represent an abuse of process or be considered frivolous, scandalous or vexatious.
In the submissions made on behalf of the husband there is reference to the husband’s affidavit of 10 September 2019. There the husband gives the following evidence:
Subpoena to Mr A Shardlow
22.My parents gave me $200,000. An issue in these proceedings is whether it is a gift to me or a gift to Ms Brebner and me. Ms Brebner contends that it was a gift to her and me.
23.In late 2017, Ms Brebner’s solicitor served a letter from my father claiming that the $200,000 my parents gave me was a gift to Ms Brebner as well as to me. At tab 12 of DS 5 is a copy of this letter. This is not the truth.
24.On 5 August 2019, my father sworn affidavit asserting that the gift of $200,000 in 2005 was to be treated as a gift to Ms Brebner and me. My father will give evidence in these proceedings in Ms Brebner’s case that is contrary to the evidence I will give about this issue.
25.My father will be a witness in these proceedings. He will be required for cross-examination.
26.I presently receive no family support from my father. He continues to visit Ms Brebner regularly. He has never visited my current residence. He refuses to enter that house. He has never visited my children with my current wife, B or C. He has refused every invitation to take any part in their lives. He refused invitations to B’s first and second birthday parties. After that, I gave up inviting him. He does not include me in the annual family week away. He invites Ms Brebner instead. I have asked him many times to soften. His standard reply is “don’t ask me now.” I have stopped asking. My mother died on 23 May 2016.
27.After Ms Brebner and I separated, Ms Brebner ceased to attend Christmas gatherings of the Shardlow family. After I received a letter at tab 12, I did not attend the Shardlow family Christmas gathering in 2017. This was the first time I have ever been absent. I also did not attend the same gathering at Christmas, 2018. Earlier this year, one of those present sent me a photograph of the Shardlow family Christmas 2018 gathering. I saw from that photograph that Ms Brebner was one of the persons present at that gathering.
28.Ms Brebner and I have two sons, X and Y. Some years ago, I heard my father say to Ms Brebner, “your children will not be disadvantaged”. I understand this to mean that he would make provision for Ms Brebner or X and Y or all of Ms Brebner, X and Y and exclude me in his last will and testament.
29.The final property alteration relief sought by Ms Brebner seeks, in part, a 15% adjustment pursuant to section 75(2) of the Family Law Act. In her trial affidavit Ms Brebner asserts, among other things, that she expects that she will have to continue to support X and Y for 10 years after they attain their majorities. They are presently aged 17 and 15 years respectively. My father is aged 82 years.
30.I have sought disclosure of written communications between Ms Brebner and my father. A number of documents have been provided by Ms Brebner through her solicitor. They did not include any comment on the subject of my father’s will, nor any copy of my father’s will. I believe that the only way to obtain that documentation is by subpoena to my father.
In Templeton & Herriot & Herriot [2003] FamCA 447 the Full Court of this Court dismissed an Appeal filed by the husband which sought to overturn the trial judge’s decision to strike out subpoenas requiring the wife’s parents to produce their wills. Kay, Holden and Strickland JJ concluded as follows:
[22] Counsel for the husband asserts that a fair trial requires full and frank disclosure as well as adequate information as to the wife’s anticipated inheritance. The setting aside of the subpoenas does not counteract or diminish in any way, the heavy onus on each party to the proceedings to provide full and frank disclosure of their financial interests by way of a sworn Statement of Financial Circumstances.
[23] We have already indicated our view that her Honour took the correct approach to what is presented as no more than a bald assertion that the wife has elderly parents who have property and/or is likely to benefit. Such an assertion is highly speculative and thus it would be “inappropriate to contemplate it as relevant in a s 79 determination, it being too remote to affect the justice and equity of the case in any worthwhile way.” (White and Tulloch v White (1995) FLC 92-640, per Fogarty, Kay and Hilton JJ, at 82,464).
In the matter of L & L [2004] FamCA 1010 the Full Court of this Court further discussed this issue as follows:
[45] In White and Tulloch v White (1995) FLC 92-640; 19 Fam LR 696 the Full Court dealt with the issue of a subpoena against the mother of a party to proceedings that sought to require the mother to produce all wills in which the wife was named as a beneficiary. The Full Court said the ultimate criterion is whether the evidence is or may be relevant to the just and equitable process under s 79. An expectancy of inheritance will not be relevant in many s 79 proceedings. Ultimately relevance must depend upon the nature of the claims being put forward and the facts of each particular case.
[46] Subsequently in De Angelisv De Angelis (2003) FLC 93-133; 30 Fam LR 304 the Full Court applied White v Tulloch v White (supra) saying at FLC 78,246; Fam LR 325:
95.The discussion by the Full Court in White and Tulloch v White (1995) 127 FLR 105; 19 Fam LR 696; (1995) FLC 92–640 of this question of the treatment of anticipated inheritances in property settlement proceedings indicates that there is no absolute rule and that each case will depend on its own facts. However, we think it important to remember that the court is required in exercising the jurisdiction under s 79 of the Family Law Act 1975 to accord justice and equity to both parties.
……….
[47] It seems to us that generally the issue of a future inheritance may be more relevant to the defence of claim for an adjustment under s 75(2) than in support of such a claim. It is not appropriate for this Court to be effectively re-writing the will of the intended testator so as to give a benefit to a person he or she does not wish to benefit. If the wife’s parents wish to provide a bequest or a legacy for the husband they are free to do so. But if they equally do not wish to provide him with any bequest of legacy it should only be in unusual circumstances that the Court would effectively make an order which would have the indirect effect of creating such a testamentary disposition.
[48] As indicated one might readily rely on an anticipated disposition to defeat a claim for an increased share based on capital or income disparity, both present and into the predictable future. However it is more difficult to justify an adjustment in favour of the party who would not otherwise be receiving that adjustment unless there were pressing circumstances which would indicate that the reasonable requirements of the party would not be met from a contributions based assessment.
As indicated by the Full Court authorities, there may be scope for prospective inheritances to form part of the relevant factors to be considered by this Court when determining an application for property settlement. In doing so, the Court must be satisfied that the facts and circumstances of the particular case justify the consideration of such matters and that it is required for the purpose of making a just and equitable decision. It follows that the husband, who seeks the production of such material, must satisfy this threshold in addition to the other principles that apply to subpoenas generally, such as relevance, as outlined above.
On the material before me it is difficult for me to know whether it is “on the cards” that the husband’s father’s current will, if there be such a document, could be relevant to the proceedings. Without complaint on behalf of the wife, the question of an adjustment by reference to the non-contribution elements of s 79(4) of the Family Law Act 1975 (Cth) is said to be relevant to her case in the substantive proceedings. Depending on what other evidence is presented in respect of such an adjustment (evidence under ss 79(4)(d), (e), (f) & (g) of the Family Law Act 1975 (Cth)), an expectation from the husband’s father could be relevant to that issue. However, there is no evidence before me that the husband’s father has any significant assets that might form part of his deceased estate. There is no evidence before me about other likely demands on that estate.
Then there are the usual problems with an argument of this type. The value of the estate could change between the date of any existing will and the time the estate is distributed. More fundamentally, it is not asserted that the husband’s father has lost or will lose testamentary capacity and therefore it would be open to him to make a new will that makes different provision for any or all of the parties and their children. The fundamental problem for the husband is that, subject to any subsequent challenge, the distribution of a deceased estate is quintessentially a matter, entirely within the discretion of the testator. It will be difficult if not impossible for the husband to gainsay his father’s evidence about his future gifting, let alone his testamentary intentions.
All of that said in my view there is an apparent link between the document sought in the proposed subpoena and a legitimate forensic purpose associated with the proceedings. I will grant the review in respect of a subpoena in the form proposed to be addressed to the husband’s father and thereby permit that subpoena to issue. Of course there will then be the opportunity for objections and perhaps ultimately a question about the admission into evidence of any document produced.
Conclusion
The husband’s application for review is granted in respect of the subpoena proposed to be addressed to Mr A Shardlow and it is otherwise dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 31 October 2019.
Associate:
31 October 2019
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