Comis & Bouras (No 2)
[2020] FCCA 2667
•24 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
Comis & Bouras (No 2) [2020] FCCA 2667
File number(s): MLC 5577 of 2010 Judgment of: JUDGE O'SHANNESSY Date of judgment: 24 September 2020 Catchwords: FAMILY LAW - Practice and Procedure - subpoena objection - apparent relevance - discovery. Legislation: Family Law Act 1975 (Cth), ss.66L and 66K
Federal Circuit Court Rules 2001 (Cth) r.24.04
Cases cited: Hall & Hall and Ors [2016] FamCA 143
Hall & Hall and Anor (objection to subpoena) [2014] FamCA 407
Hatton v The Attorney-General (Cth) (2000) FLC ¶93-03
National Employers’ Mutual General Insurance Association Ltd v Waind [1978] 1 NSWLR 372
Sadek and Ors & Hall & Anor (2015) ¶FLC 93-634
Number of paragraphs: 35 Date of last submission/s: 21 September 2020 Date of hearing: 21 September 2020 Place: Melbourne The Applicant appeared In Person Solicitor for the Respondent: Ms Sarantis of A Agrotis & Associates ORDERS
MLC 5577 of 2010 BETWEEN: MS COMIS
Applicant
AND: MR BOURAS
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
24 SEPTEMBER 2020
THE COURT ORDERS THAT:
1.The Applicant's Notice of Objection filed 26 June 2020 to the subpoena to the Commonwealth Bank of Australia (CBA) be dismissed.
2.The documents produced on subpoena by the CBA be released (electronically) to the parties and their legal representatives, including for photocopying.
3.By 12 October 2020, the Applicant provide to the Respondent's solicitor a copy of the following:
(a)The documents necessary for her to comply with her duty of disclosure of her financial circumstances;
(b)Any rental agreement or document concerning the rental of the property at B Street, Suburb C, Victoria;
(c)Bank statements for any bank accounts/credit cards/mortgage/loan accounts held in her name either solely or jointly with another person for the previous 3 years from this day, but except any bank statements produced on subpoena by CBA;
(d)Any receipts of Mr D’s health care paid by the Applicant including but not limited to psychiatric consultations, doctors’ appointments and medication as are in the Applicant's control, power or possession; and
(e)Any document requested and particularised in writing by the other party (subject to relevance and any objection or claim or privilege which shall be particularised in writing) within 28 days of the request and at the cost of the party requesting the documents.
4.By 12 October 2020, the Respondent provide to the Applicant a copy of the following:
(a)The documents necessary for him to comply with his duty of disclosure of his financial circumstances;
(b)Bank statements for any bank accounts/credit cards/mortgage/loan accounts held in her name either solely or jointly with another person for the previous 3 years from this day; and
(c)Any document requested and particularised in writing by the other party (subject to relevance and any objection or claim or privilege which shall be particularised in writing) within 28 days of the request and at the cost of the party requesting the documents.
IT IS NOTED that publication of this judgment under the pseudonym Comis & Bouras (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
This matter came to me from Judge Harland's list on 21 September 2020. Listed before me was the Applicant, Ms Comis’, Notice of Objection to a subpoena. At the end of the hearing I told the parties what the substance of the orders would be and reserved to deliver reasons and draft the orders. These are those reasons and orders.
The uncontroversial aspects of the background of the proceedings is that the Applicant, the mother of Mr D (Mr D), who is aged 27 years, seeks an order for what is commonly referred to as adult child maintenance pursuant to section 66L the Family Law Act 1975 (Act). As I understand it, it is not controversial that the parties are aged 54 and 53, that they married in 1991, separated in 1992 and were divorced in 1994. The parties have two children, twins born in 1992. One of those now adult children lives with the Respondent and the other, the subject of these section 66L proceedings, is said to live with the Applicant. The Applicant has another child aged 23 years and the parties disagree about the Respondent's role in this child's life. The Applicant asserts she is in receipt of a disability support pension and otherwise has no income. The Respondent says he is employed as a carer.
Judge Harland made an order on an urgent and interim basis on 8 November 2019 that the Respondent pay urgent adult child maintenance in the sum of $500 per week which order had been varied to the sum of $400 per week on 21 February 2020. By directions made on 25 June 2020 the matter is fixed for a conciliation conference on 30 October 2020 with a directions hearing fixed for 16 November 2020. The matter is not yet fixed for final hearing: that matter will be attended to at the directions hearing in the event that the parties are unable to work out a compromise of the proceedings with the assistance of a registrar at the conciliation conference.
The hearing proceeded with the objector also the Applicant in the proceedings (and is referred to herein as the Applicant) attending by telephone, as she was that day unable to operate a video link via Microsoft Teams, the system used by the court. The objector appeared on her own behalf and the Respondent appeared by Ms Sarantis, solicitor from the firm of A Agrotis & Associates.
The subpoena had been issued by the Respondent's solicitors to the Proper Officer of the Commonwealth Bank of Australia (CBA) and sought:
“all banking records in relation to accounts, credit cards and loan facilities held by MS COMIS (also known as MS COMIS) born in 1966 from 1 January 2015 to 15 June 2020.”
The CBA had not objected to the subpoena and Ms Sarantis informed me that the CBA had produced documents to the court in apparent compliance with the subpoena, but of course those documents had not yet been inspected.
In anticipation of the hearing to deal with the Notice of Objection the party issuing the subpoena, the Respondent, had served and provided to the court two further documents; the document headed “Proposed Interim Orders Sought by the Respondent Father's solicitors, (orders sought by the Respondent) and a document headed “Written Submissions on behalf of the Respondent Father (Respondent's written submissions). The orders sought by the Respondent will be marked F1 and the Respondent's written submissions will be marked F2. Both documents will remain on the court file.
Orders sought one and two of F1 relate to the subpoena hearing. Orders sought three of F1 by parts a., b and c., in substance sought further discovery from the Applicant.
Ms Sarantis advised me that the documents F1 and F2 had been emailed to the court and to the Applicant on Thursday, 17 September 2020, that is mere days before the hearing before me on Monday, 21 September 2020.
It appeared likely to be convenient to the parties and the court if the further discovery controversy relating to the orders sought at part three of the F1 document could be heard that day. I asked of the Applicant whether she objected to the discovery orders being dealt with that day. The substance of her position, after discussion with me, was that she was concerned that she had not been aware of the ability to make written submissions and was concerned that she was disadvantaged having not made any written submissions herself but, provided she was able to tell me what concerned her about the discovery issue, she did not object to the discovery issue being dealt with at the same time as the subpoena objection, that is there and then.
The parties dispute what each says about real estate property that is alleged to be owned or held beneficially for the other. The Applicant has deposed to the Respondent being the owner or part owner or at least entitled to the benefit of property held by or with siblings and to the effect that he is not being frank with the court as to his ownership and benefits from that property. The Respondent has set out on affidavit what he asserts to be the reality of his property ownership.
The Respondent asserts that in 2015 a property in Suburb E where the Applicant was the sole registered proprietor was sold for a sum in excess of $800,000. The Respondent suggests by inference, or is suspicious of, a connection between the sale of that property and the subsequent purchase for more than $900,000, he says in 2017, of the property at Suburb C, registered in the names of the two children of the Applicant who are not the subject of the section 66L application. It is alleged neither of those two now adult children of the Applicant live at the Suburb C property but that the Applicant and the adult child subject to the section 66L application live at that property. The Respondent says one of those adult children registered proprietors’ lives with the Respondent and he says is supported by him. The rental expense claimed as part of her living expenses claimed by the Applicant and said to relate to the adult child the subject of the section 66L application, relates to this property.
After I pressed for some time the Applicant conceded, in substance, that she had been the registered proprietor of the Suburb E property but said that she had at all material times merely held the property on trust and that the funds for its purchase had not come from her. She told me, in substance, that the rental she paid for the property she lived in was applied to the mortgage secured on that property.
The Federal Circuit Court Rules 2001 (Rules) provide for the hearing of an objection to a subpoena but as those Rules do not set out matters to be taken into account, reference must be had to general law principles. The Full Court of the Family Court of Australia in Sadek and Ors & Hall & Anor (2015) ¶FLC 93-634 at [17]-[20] (Sadek & Hall FC Subpoena objection), applied the well-known analysis of Moffat P. in National Employers’ Mutual General Insurance Association Ltd v Waind [1978] 1 NSWLR 372 (Waind and Hill) as to the three steps of the procedure of documents being produced to court on a subpoena.
The Full Court observed, inter alia;
[18]. The first step is the witness obeying the subpoena by bringing the documents to court. At that stage the court should determine any application…and any dispute concerning the production of the documents to the court….
[19]. The second step…was the consideration of the court granting access to the documents after their production to the court… (and quoting Moffitt P. at 384)
"….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…."
[20]. The third step is the admission of such evidence as may be admissible into evidence.'
I also note that the documents sought on subpoena could all, or mostly, be said to be documents to which the duty of disclosure may apply in any event. This was not argued before me, it did not need to be, although the Respondent asserted in the written submissions that the Applicant's disclosure was deficient. It must also be noted that the test for release of a strangers documents may be more stringent as observed in Waind and Hill at 384:
“the invasion of the rights of a third party have been jealously guarded.”
The Respondent, in helpful written submissions, (F2) asserted the subpoenaed documents were relevant to assist to identify the Applicant's expenses of providing for the adult son and the application of the sale proceeds of the Suburb E property and the source of funds to purchase the property the Applicant says she rents and the payment of the substantial mortgage encumbering that property.
In Sadek & Hall FC Subpoena Objection, the Full Court at [21] referred to “another equally well-known decision namely Hatton v The Attorney-General (Cth) (2000) FLC ¶93-03”, (Hatton) where the test for release of documents upon objection to inspection of documents was whether the documents had “apparent relevance” to the issue in the substantive proceedings.
In Hall & Hall and Anor (objection to subpoena) [2014] FamCA 407 (Hall & Hall (Objections to Subpoena), the first instance hearing of Sadek & Hall FC Subpoena Objection Dawe J conveniently summarised a number of authorities dealing with objections to subpoena. In the subsequent Full Court appeal the principles Dawe J set out were unquestioned. Her Honour said:
13. In Epstein & Epstein[1993] FamCA 45; (1993) FLC 92-384 the subpoenas were set aside because they were described as “oppressive” due to the large amount of documents referred to over a particularly lengthy period.
14. In the recent case of Martin & Martin and Anor[2014] FamCA 232 Cronin J referred to the question of whether the subpoenas were “fishing” and whether the document was relevant. His Honour said at paragraph 28:
28. In my view, the objection on the grounds of both fishing and relevance fails. As Gibbs CJ said in Alister v R[1984] HCA 85; (1984) 154 CLR 404 albeit in a criminal law case, the focus of the Court should be whether it was “on the cards” that the documents would materially assist. “Fishing” can be argued where the pursuit of information is random, unguided and the pursuer has no case but seeks to build one. Here, NFL says that it knows what it is looking for even if it cannot specifically point to the exact sequence of events. It submits that the documents pursued will provide the answers to fill in the missing details as distinct from providing it with a case. As I understand NFL’s submission, this is an extension or further step based on that information. As such, I would not find the exercise to be fishing. Is it documentation that is therefore relevant? In Woley and Humboldt (No 3) [2009] FamCA 546 I said:
39. In Hudson Timber and Hardware Ltd v Chaudhary Group Pty Ltd [2002] FCA 832 the Full Court of the Federal Court examined the issue of apparent relevance and said that the relevant principles governing the obtaining of documents on subpoena which have “apparent relevance” were that inter alia:
(1) The relevance of documents was not limited to documents directly admissible in themselves in proof of an issue raised in pleadings; and
(2) If a class of document which has material forensic relevance could be shown to exist, then a subpoena would not normally be set aside.
40. In White v Tulloch (1995) FLC 92-640, the Full Court of the Family Court referred to the test in terms of documents having “a sufficient apparent connection to justify their production or inspection”.
41. In Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 248; (1989) 21 FCR 306, Beaumont J saw relevance as something where a document "could possibly throw light on the issues in the main case".
42. In Portal Software International Pty Ltd v Bodsworth, [2005] NSWSC 1115, Brereton J looked at a number of authorities including of this Court and said:
Thus it is plainly not the question at this (first) stage whether the documents, production of which is sought, will definitely advance the case of the parties issuing the subpoena, nor whether they will be admissible in evidence at the trial. It is sufficient that they could "possibly throw light" on the issues in the substantive proceedings, or that it appears to be "on the cards" that they will do so. What are the issues in the proceedings will appear from the pleadings (where there are pleadings), the affidavits, and the legal principles which govern the claims for relief in the substantive proceedings.
29. … In Papadopoulos and Papadopoulos (No 2) [2007] FamCA 1683, I observed:
49. The question of what is relevant takes on significance. The objective must be to assist the parties and the court in the determination of the issues in dispute. How does one determine that at an early stage? This issue was considered in the Victorian Supreme Court in Killorgan Investments Pty Ltd v Baycorp Advantage Business Information Services Limited and Ors where Byrne J said:
The degree of relevance for this purpose is not high: the inspecting party need only show a legitimate forensic purpose in the inspection. A party is entitled to inspect documents not only to see if they contain relevant facts, but also to see if they contain information which may be proved otherwise than through that document.
50. Accordingly, the bar is not set very high in respect to the question of relevance in a civil proceeding as between strangers. It should be less so in family law proceedings provided the pursuit of information is genuinely designed to assist in determining the issue and not for some illicit or harassing type of reason.
51. The onus in establishing the relevance lies on the person seeking the production of the documents either by way of subpoena or through discovery.’
In Hall & Hall and Ors [2016] FamCA 143 (10 March 2016) (Hall & Hall 2016) Dawe J adopted and observed:
[25]. In the matter of Lauritz & Lauritz and Ors [2015] FamCA 635 his Honour Justice Le Poer Trench said at paragraphs 71 and 72:
71. It is well established law that the issuing party, in this case the wife, bears the onus of proving that the documents sought have an apparent relevance to the issues in the matter. In the decision of Andrew Garrett Wine Resorts & Anor v National Australia Bank Limited (No. 6) [2005] SASC 292; (2005) 92 SASR 419 at paragraph 37, the Honorable Justice Gray stated that:
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.'
Hence it can be seen that different circumstances from case to case have meant that emphasis can be placed on more or less restrictive aspects of the authorities.
With respect, I adopt the observations of Dawe, Cronin & Le Poer Trench JJ set out above.
The Applicant, in substance, and in articulate and forceful terms, told me the subpoena documents should not be released because the release of the documents would not provide any utility or knowledge to the parties in the circumstances where;
(a)she only had a CBA account;
(b)she was in receipt of the disability support pension (DSP) and the relevant department had conducted a thorough test of her income;
(c)that the Australian Taxation Office was involved in the payment of the DSP; and
(d)that the ATO and the DSP department were satisfied she did not have any other income otherwise she would not be eligible for the DSP.
Hence, she argued, it was not necessary for the subpoenaed documents to be released and so they should not be.
The Applicant further argued that the Respondent knew what the situation was with the house she lived in and that she had provided sufficient documents and hence no more were required.
The Applicant also argued that she found the pursuit of documents by the Respondent as very stressful and that she was considering withdrawing her application so that the adult child could do it himself and, she said, then her documents would not be required. I advised her that this was something I could not advise her on. The Applicant did not then ask to withdraw her application.
In substance the Applicant pressed the same arguments against any orders for further disclosure as she did against the release of the subpoenaed documents.
After discussing with the Applicant, in the circumstances where she was a litigant in person, the concept of disclosure and the usefulness of disclosing documents that help one’s case, the Applicant pressed the alternative position that if the subpoenaed documents were to be released or further disclosure was to be ordered the disclosure or release of documents should only go back three years not the five years that the subpoenaed documents cover. The Applicant’s submissions were of assistance in understanding her position and I am grateful for them.
When I raised with Ms Sarantis and the Applicant my tentative view that, to ensure proper disclosure prior to the conciliation conference, but without finding that either party had not made proper disclosure, that I should order both parties to make such disclosure as was necessary to comply with his or her duty of disclosure and that I would use as a format for my orders the minimal requirements of the documents and information described in rule 24.04 of the Rules. No objection was raised by Ms Sarantis. The Applicant did not object to the form of orders proposed by maintained her objection to disclosure orders against her.
Section 66L applications are usually driven by evidence to satisfy the necessary conditions of section 66L(1)(a) or (b) and the matters described at section 66K(1). Those matters of financial circumstances are often, not always, primarily about income and earning capacity but disclosure of all of both parties income, earning capacity, property and financial resources is necessary.
In this case the Applicant claims to pay rent to two of her children, one of whom lives with the Respondent, and the Respondent questions whose home that really is. The Respondent claims not to be entitled to receive any income from property co-owned with his siblings.
Having considered all of the arguments put to me by the parties, and I note I have recited herein the Applicant’s main arguments, I find that it is proper for the subpoenaed documents to be released to the parties including for photocopying. Whether or not these matters will be the primary matters upon which the final hearing turns, information that sheds light about those matters, that is the documents that have been subpoenaed, are in my view, and I find, of sufficient relevance that I should make the orders relating to release of the subpoenaed documents as sought by the Respondent's solicitor.
Having considered all of the arguments put to me by the Applicant and the written submissions of the Respondent I find that it is proper to make the further order for disclosure by each party as I have raised them and as I indicated to the parties I was considering making during the hearing and heard what they had to say.
I make no finding as to ownership of any of the property when ownership or interest therein is in dispute. I make no finding as to whether past disclosure has been adequate or not. That, if relevant, can wait until final hearing.
I commented to the parties during the hearing about the heavy burden of confidentiality that related to documents that were obtained in litigation by compulsion, that is the documents and information subpoenaed or discovered, can only be used for the purpose of these proceedings unless the permission of the court is obtained.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 24 September 2020
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