Daniels and Findlay (No. 2) - [2012] FamCA 422

FAMILY COURT OF AUSTRALIA

DANIELS & FINDLAY (NO. 2)

[2012] FamCA 422

FAMILY LAW – PRACTICE AND PROCEDURE – Objections to subpoenas dismissed

APPLICANT:

Mr Daniels

RESPONDENT:

Ms Findlay

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

1996

2008

DATE DELIVERED:

25 May 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Dessau J

HEARING DATE:

25 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Combes

SOLICITOR FOR THE APPLICANT:

Holt & McDonald

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

Orders

That the objections of Ms H to the husband’s two subpoenas to the Westpac Bank filed 4 May 2012, being the objections filed on 22 May 2012, shall be and are hereby dismissed.
That the documents produced to the Court by Westpac Bank in response to the said subpoenas can be released for inspection by the parties.
That the husband’s Amended Application in a Case filed 2 May 2012 shall be adjourned for Mention before me at 10.00am on 18 July 2012.
That all questions of the husband’s costs of the Amended Application in a Case and the subpoena issue shall be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Daniels & Findlay (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1996 of 2008

Mr Daniels

Applicant

And

Ms Findlay

Respondent

REASONS FOR JUDGMENT

One issue remained in this long-running case after I gave reasons for judgment on 11 May 2012 in relation to Mr Daniel’s (“the husband’s”) amended application in a case filed 2 May 2012, an application that was fully directed towards his ongoing endeavours to achieve implementation of the final property orders made by me a long time ago now.
The remaining issue is whether materials subpoenaed from Westpac Bank should be released and inspected by the husband and his legal representatives.
The husband’s lawyer filed two subpoenas on 4 May 2012, both directed to Westpac bank.
The first sought:
All bank statements in the name of [A-P Pty Ltd] from 28 March 2012 to date, including, but not limited to, account number […55].
The second subpoena directed to Westpac sought:
All correspondence, emails, notes of telephone discussions or communications relating to account number […55] in the name of [A-P Pty Ltd] from either the directors or secretary of that company.
Both subpoenas were returnable on 11 May 2012. Westpac produced the documents pursuant to both subpoenas and, notably, made no objection to their production or inspection.

The objection, such as it is, comes from Ms H, a director of A-P Pty Ltd. She gives three grounds of objection in relation to both subpoenas in Notices of Objection filed on 22 May 2012. The three grounds are as follows:
1.I am a director of [A-P Pty Ltd] and, to my knowledge, the company is not enjoined in the proceedings.
2.Documents re the subpoena were posted to the company’s registered office and have not been properly served.
3.The directors object to any person examining, copying or having any access to the bank statements which are confidential to the company and refer the Court to the Privacy Act, Corporations Act 2001 and companies law.
The notices are dated 18 May 2012, and are signed by her.
I shall deal first with the issue of service. Part 15.3 of the Family Law Rules deals with subpoenas. It deals with service on the named person, in this case, the bank, and on other parties, in this case being the wife. It does not deal with service on other persons, as such. I am satisfied, though, that Ms H has had ample notice of the subpoena. The wife was able to convey to me on 11 May 2012 that the director objected to the subpoenaed material being released, and that is specifically why the matter was adjourned until today.
By that time, copies of the subpoenas had certainly been sent to the wife by email and posted to the company’s registered office. The wife was the company secretary and the registered office was at her address. Since then, it has been posted to Ms H at … T Street, Suburb 1, to the wife as secretary of X Pty Ltd, again at her home address, and to Mr C, who was another director of A-P Pty Ltd.
As noted, Ms H filed a notice of her objection. That satisfies me that she has had ample notice of today’s hearing. The fact that her objection was only filed within the last several days, and not served on the husband’s solicitors, in the circumstances is not a concern. The applicant has not taken the point and the issue can proceed.
Rule 15.26 of the Family Law Rules deals with objections to a subpoena. The named person may object. As noted, Westpac has not chosen to do so. Otherwise, “a person having a sufficient interest” may also object. I am satisfied that as a director of A-P Pty Ltd, Ms H would have a sufficient interest to object. Rule 15.26 provides that a person who objects must attend Court to apply for the subpoena to be set aside or documents not to be produced.
Ms H, who has been properly called three times today, has failed to appear. The wife, who appears to be in close contact with Ms H, tells me that Ms H had a very late night last night, “attending to various matters”, and it was unlikely she would be available, even by telephone, until this afternoon. In any event, I have not heard directly from Ms H and she is not here. In my view, that would be sufficient to be an end to this objection, and the documents produced by the bank, without objection, could easily be produced to and inspected by the husband and his lawyers.
However, given the fraught nature of this case, it is appropriate in this particular instance to, nevertheless, deal with the merits of the applications so that the matter is dealt with once and for all, and cannot be resurrected, at least not in this forum.
So I turn to the grounds for objection. Rule 15.31 provides that at least 10 days before the court date, the person objecting must give written notice. Although it is a point of conjecture as to when Ms H was served, I am satisfied, as I have said, that she has had notice for a sufficient and fair period. Again, I note that, although her objection is filed very late and, arguably, it could have been filed earlier, I need not go down that path because there is no point taken about the fact that it is a very late objection.
Although there are some recognised grounds of objection to a subpoena, the categories of objections are not defined or closed.
The first ground of objection here, that the company is not enjoined in the proceedings, is quite simply not, in itself, a reason to submit to the objection.
The second ground of objection, as to service, has already been dealt with by me.
The third ground of objection is as to the confidentiality of the company’s bank statements. First, I note that confidentiality, in itself, is not a ground of objection. It is a factor to be taken into account, together with the tests for oppression, by reference to the breadth of the subpoena, definition of documents, and the burden upon those to whom the subpoena is addressed (see Seven Network Ltd v News Ltd (No 5) (2005) 216 ALR 147 and Ryder & Lee [2009] FamCA 531).
In Ryder & Lee, Burr J considered that rule 15.27 of the Family Law Rules:
“…clearly outlines the obligation that documents produced pursuant to subpoena are only to be used for the purpose of the case in which they were produced.”
The Full Court refused to grant leave for the objector to appeal against Burr Js decision.
In Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98, Powell J set out examples whereby a court will set aside a subpoena. In doing so, his Honour noted that the list was not exhaustive and that all of the examples could be classified as an abuse of process. His Honour stated:
“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”…”
I am not satisfied that Ms H – even if she had turned up today to prosecute her objection – has any valid ground of objection at all in this case. The bank, as I have noted, does not object in any way, for example, on the basis that this is an oppressive subpoena.
Throughout the property case in this Court, A-P Pty Ltd was described as the trustee of the parties’ superannuation fund. The fund contains assets derived from the parties. They are to be divided according to orders of this Court. Steps have been taken to ensure that occurs. Obstacles have been put in the way. I do not even need to venture into the territory that the wife is company secretary, or that the parties have been directors (although in the husband’s case - and I accept his version on this – he has been removed several times without notice, just since the final hearing of this case).
The subpoenas are served to aid the enforcement of orders of this Court that provide for moneys to be distributed between the husband and wife from the A-P Pty Ltd bank account at Westpac so that A-P Pty Ltd can then be wound up. The only impediment now seems to be the bank’s concern that the husband is no longer a director, and this aspect needs to be properly unravelled, starting with reading the material that the bank has received that may have influenced it, and to cast light now on what can best be done, as quickly as possible, to ensure that the orders are enforced.
Ms H has shown no genuine basis of objection.
It is pressing that the husband have the right to inspect these statements and correspondence to ascertain the blocks to the implementation of the very clear orders in relation to the distribution of those funds in that account between the parties. A-P Pty Ltd, on any of the evidence I have heard, is not a trading company, where issues of confidentiality, even if relevant or sustainable, could be made out in terms of any commercial arrangements.
I am satisfied that the objection in this case is a furphy. There is no substance to it.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 25 May 2012.

Associate:

Date: 25 May 2012