FEDERAL CIRCUIT COURT OF AUSTRALIA
| FABER v CHILD SUPPORT REGISTRAR & ANOR | [2018] FCCA 2301 |
| Catchwords: PRACTICE AND PROCEDURE – Application to set aside subpoena – principles in relation to setting aside subpoena – whether subpoena issued for an improper purpose or an illegitimate forensic purpose – whether the subpoenaed document relevant to the issues to be determined – whether subpoena an abuse of process – whether subpoena oppressive or vexatious – consideration of effect of prior refusal to release subpoenaed document pursuant to a freedom of information request. |
| Legislation: Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s.11 Child Support (Assessment) Act 1989 (Cth), Pt.5 Div.7, ss.4, 25, 98C, 117 Federal Circuit Court Rules 2001 (Cth), rr.15A.02, 15A.09, 15A.14 Freedom of Information Act 1982(Cth), ss.37, 47E |
Keep reading for free
Create a free CaseChat account to read Faber v Child Support Registrar and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2018] FCCA 2301
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the subpoena had been issued for an improper or illegitimate forensic purpose, whether the subpoenaed document was relevant to the issues to be determined, and whether the subpoena constituted an abuse of process, was oppressive, or vexatious. The court also considered the effect of a prior refusal to release the document under a freedom of information request.
Judge Lucev reasoned that a subpoena should not be used as a "fishing expedition" to discover if a case exists. The court applied the principles that a subpoena will be set aside if it is sought for an improper purpose, is irrelevant, or is an abuse of process. In this instance, the court found that the subpoenaed document, titled "Calculating financial capacity for business owners," was not relevant to the specific issues before the court in the context of the appeal. The court determined that the applicant had not demonstrated a sufficient forensic purpose for requiring the document, particularly in light of the information already available and the nature of the appeal.
Consequently, the court ordered that the subpoena issued on 20 December 2017 for Document 277-040600 be set aside. The court also made directions regarding the filing and service of submissions concerning any award of costs.
Orders
Orders of the court
1.
The Subpoena issued on 20 December 2017 for Document 277-040600 “Calculating financial capacity for business owners” be set aside.
2.
Any party:
(a) seeking an award of costs must file and serve a written outline of submissions (of no more than five pages), supported, if necessary, by affidavit, by 27 August 2018; and
(b) any party opposing an order for costs sought in accordance with sub-paragraph (a) of this order must file and serve a written outline of submissions (of no more than five pages) in response, supported, if necessary, by affidavit by 3 September 2018,
with the Court to determine the issue of costs on the papers filed by the parties.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.