Deave & Pallin (No 2)

[2024] FedCFamC2F 44

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Deave & Pallin (No 2) [2024] FedCFamC2F 44   

File number(s):

HBC 1339 of 2021

Judgment of:

JUDGE TAGLIERI

Date of judgment:

22 January 2024

Catchwords:

 FAMILY LAW – subpoena – application to issue a subpoena or make an order directed to an entity previously subpoenaed in the proceedings – whether the subpoenaed entity had complied with the terms of an earlier subpoena and with court orders – whether terms of subpoena or order sought were sufficiently particularised – terms sought improper or alternatively a fishing - leave to issue subpoena declined  

Legislation:

Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) rr 6.33, 6.38

Cases cited:

Commissioner for Railways v Small (1938) 38 SR (NSW) 564

Hatton v Attorney-General of Commonwealth of Australia & Ors [2000] FamCA 892

Division:

Division 2 Family Law

Number of paragraphs:

16

Place:

Hobart

Counsel for the Applicant:

Ms Mooney SC

Solicitor for the Applicant:

Simmons Wolfhagen

For the Respondent:

In person

Solicitor for the Independent Childrens Lawyer:

Ms Van Meer, Tasmania Legal Aid

ORDERS

HBC 1339 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR PALLIN

Applicant

AND:

MS DEAVE

Respondent

ORDER MADE BY:	JUDGE TAGLIERI
DATE OF ORDER:	22 JANUARY 2024

THE COURT ORDERS THAT:

1.The application for leave to issue a subpoena to R Authority, or order production of documents is dismissed.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

Judge Taglieri

1. Two subpoenae were filed by the Mother on 7 September 2023, in the same terms: one to P School and the other to R Authority, in the following identical terms:

   […]

   2.all records, including but not limited to notes, correspondence [sic] (including emails), memos and other documents, school reports and attendance records relating to [the child].

   3.a copy of any communications and correspondence [sic] (including email) with the [Father], including any communications/corrospondence [sic] with [the Father] involving any complaints relating to [the child] and his schooling.

2. On 20 November 2023, at a case management hearing and following application by the Father, I made an order as follows:

   2.In the event that [R Authority] has not produced to the Court for inspection the following documents, it is required to do so by no later than 9.00am on 23 November 2023:

   a.Grievance or complaint lodged by [Mr Pallin] in relation to bullying of [X];

   b.Response of the investigation from [R Authority] regarding 2 (a); and

   c.Communications between [Mr Pallin] and [Ms Q] concerning the allegations of bullying and the investigation by [R Authority].

3. In response to the subpoenae, R Authority produced a PDF bundle of documents on 22 September 2022 (comprising 371 pages with an index) and then a further PDF bundle provided under cover of an email of 24 November 2023 (comprising 106 pages). The covering letter which accompanied the documents uploaded on 24 November 2023 explains that the additional documents were produced:

   ·In relation to an email from the Father advising that in non-compliance with the subpoena, records relating to his communications with Ms Q had not been provided; and

   ·Belatedly also in response to the Court’s orders of 20 November, of which it only became aware after the date specified in the order.

4. At the case management hearing on 15 January 2024, the Father asked the Court to make a further order about production of records, stating that R Authority had failed to produce all documents answering the terms of the subpoenae and/or court order to which I refer above.

5. The Father’s submissions were confusing and lacked clarity about what documents he asserted existed and were held by R Authority, and had failed to be produced according to the terms of the subpoenae. He maintained that R Authority had refused to produce some documents on invalid grounds such as privacy, child protection, and absence of specific instruction from the Court.

6. I granted leave to the Father to apply by email to my Chambers with the precise terms of the order he sought in relation to R Authority and records he claimed existed which had not been produced. I observed that the authority of Commissioner for Railways v Small (1938) 38 SR (NSW) 564 governed questions of subpoena to produce documents and it was improper to embark on a fishing expedition. I emphasised that he needed to persuade me that a relevant document existed, was in the possession or control of R Authority, and had not been produced pursuant to a validly issued subpoena.

7. By email dated 17 January 2024, pursuant to Order 5 of the Orders made 15 January 2024, the Father sought an order for leave to issue a subpoena in the following terms:

   Noting that:

   (a)The Court has previously directed [R Authority] to release information on two occasions in connection with the current proceedings: HBBC [sic] 1339 / 2021  [Deave v Pallin];

   (b)When [R Authority] responded to Subpoena S3 in September 2022, [R Authority] staff noted that some files were not being released, due to privacy and child protection reasons and the absence of specific instructions by the Court to the contrary;

   (c)The files being withheld on purported privacy and child protection grounds were not identified at that time; and

   (d)With the Trial in these proceedings now imminent, it is imperative that [R Authority] release all relevant files in its possession to the Court.

   The Federal Circuit and Family Court of Australia now orders that:

   (1)[R Authority] release to the Court all files in its possession relating to [the child], a student at [P School], and [the Father];

   (2)No statutory exceptions relating to privacy or child protection are to be applied by [R Authority] in considering the material to be released, as none are relevant in this case;

   (3)Identified files are to be released in full, with no redactions; and

   (4)If [R Authority] again seeks to withhold files from the Court for any reasons whatsoever, or it insists on making redactions to released files in direct contravention of these Orders, the files in question are to be listed and described in a way that will allow them to be readily identified by the Court for enforcement purposes, including:

   (i)the date the file was created;

   (ii)the creator of the file;

   (iii)the subject matter of the file; and

   (iv)the type of file (such as internal departmental email, external email, file note, notes of counselling session)

   SUBPOENA LAW

8. The seminal authority relating to subpoena law and the foundation to exposition and expansion of applicable legal principles is Commissioner for Railways v Small (1938) 38 SR (NSW) 564. I summarise those principles as follows:

   ·A subpoena to produce documents addressed to a stranger or non-party must specify with reasonable particularity the documents which are required to be produced.

   ·The terms of the subpoena ought not require the person/entity served to search for and produce all such documents as maybe in their possession or power relating to a particular subject matter.

   ·It is not legitimate to use the subpoena for a purpose of endeavouring to find what would in effect be a discoverable document(s) from a person who is a stranger or non-party and so not liable to make discovery.

   ·A stranger or non-party ought not be required to go to the trouble and expense of ransacking 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 ignorant.

   ·A party to a proceeding may be the subject of a subpoena to produce documents, but it is important to ensure that the subpoena is not used as a substitute for discovery of documents or an application for further and better discovery.

   ·A subpoena to produce documents should not be used for the purpose of fishing or endeavouring to obtain evidence to support a case.

9. These principles expressed similarly have been widely applied and approved of in many authorities relating to civil and family law jurisdictions. In the family law jurisdiction, the Court of Appeal of the Family Court extensively addressed the summarised principles in Hatton v Attorney-General of Commonwealth of Australia & Ors [2000] FamCA 892 (“Hatton”), commencing at [34].

   EVALUATION AND DETERMINATION

10. Documents fitting the description of [1] of the email application made by the Father on 17 January 2024, in substance and effect, are the same as the terms of the subpoena issued in September 2023, which R Authority has answered.

11. The Father has not provided any particulars of the documents he now wants produced. If he claims that there are relevant documents which have not been produced and fit the terms of the subpoena already issued or the terms of [1], he ought to be capable of describing the nature of the document, if not the date it was created. His inability or failure to provide the particulars or description of the documents he claims have not been produced lead me to infer that he is engaged in a fishing expedition, which is impermissible.

12. The onus is on him to satisfy the Court that there are documents that have apparent relevance to the issues in dispute, likely exist, are in the possession and control of R Authority, but have not been produced. He has failed to persuade me of this.

13. To the extent that the Father claimed that R Authority had withheld documents due to privacy, child protection or other reasons, he has not produced evidence of that. Instead, he has merely asserted it.

14. Having reviewed the documents produced by R Authority,[1] there are no redactions of substance.  The redactions are limited to the identities of children not involved in these proceedings and to personal details by which some staff members can be contacted. In any event, the Father did not direct the Court to any specific page or section of the provided documents for which he sought unredacted versions, as was the intention of my order of 15 January 2024.

    [1] Produced 22 September 2022 and 24 November 2023.

15. If R Authority had made any redactions of substance, it would not have been proper to do so. Instead, they should have complied with Rule 6.38 of the Rules and filed an objection to production or inspection, which would have been listed for hearing before a judicial officer. However, I am satisfied R Authority has only redacted irrelevant information.

    CONCLUSION

16. For the foregoing reasons, I decline the Father’s application to issue a fresh subpoena to R Authority in the terms sought or to make an order for production of documents.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri.

Associate:

Dated:       22 January 2024