Goreshter & Goreshter (No 2)
[2024] FedCFamC1F 306
•15 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Goreshter & Goreshter (No 2) [2024] FedCFamC1F 306
File number(s) PAC 2908 of 2020 Judgment of WILSON J Date of judgment 15 May 2024 Catchwords FAMILY LAW – PROPERTY – notices of objection to two subpoenae – applications by the applicant to set aside each subpoena – one application withdrawn before being dismissed – the other subpoena set aside. Cases cited Aon Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175
Commissioner of Railways v Small (1938) 38 SR (NSW) 564
Hearne v Street (2008) 235 CLR 125
Woodcock v Woodcock (2021) 64 FamLR 489
Division Division 1 First Instance Number of paragraphs 30 Date of last submission 15 May 2024 Date of hearing 24 April, 9 and 15 May 2024 Place Melbourne Solicitor for the applicant CFS Legal Solicitor for the respondent Kamara Lawyers & Advisors ORDERS
PAC 2908 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MS GORESHTER
Applicant
AND MR GORESHTER
Respondent
ORDER MADE BY
WILSON J
DATE OF ORDER
15 MAY 2024
THE COURT ORDERS THAT –
1.The applicant’s subpoena issued by the respondent to Australia and New Zealand Banking Group Ltd dated 5 April 2024 is dismissed and I grant leave to the respondent to issue a new subpoena to the correct entity.
2.The subpoena issued by the respondent to Australia and New Zealand Banking Group Ltd dated 2 May 2024 is set aside.
3.The further hearing of this proceeding is adjourned for mention on 11 June 2024.
4.The resumption of the trial of this proceeding on 11 June 2023 is vacated.
5.Costs of and incidental to all matters referable to the two subpoenae and the applications for their setting aside are reserved.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Goreshter & Goreshter has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
The resumption of the trial of this proceeding (marked part-heard) is fixed for 11, 12, 13 and 14 June 2024, approximately one month from today.
Since the trial was adjourned, the respondent has filed several subpoenae to which the applicant has objected. In respect of both subpoenae the applicant contended that the documents sought by subpoenae should either not be produced to the court or, if produced, should not be inspected by the respondent because the bank statements will reveal details of persons to which privacy legislation applies.
When this matter was before me on 24 April 2024 I brought to the attention of Ms Zhang, the applicant’s solicitor, the proper approach towards subpoena objections as canvased by me in Woodcock v Woodcock.[1] Ms Zhang told me on that day that she was unfamiliar with the reasons in my decision in Woodcock v Woodcock[2] so I adjourned the debate about subpoena objections to 9 May 2024. On that day I raised issues about the breadth of the subpoenae and fixed the case for further hearing today.
[1] (2021) 64 FamLR 489.
[2] Ibid.
When this proceeding was before me today –
(a)the respondent’s legal representative withdrew the second subpoena; and
(b)Ms Zhang told me the recipient of the subpoena informed the registry that the first subpoena was defective for being addressed to the wrong party, although having examined its material (assuring the subpoena was valid) no documents answered the subpoena.
Two subpoenae were relevant. The first, sealed on 5 April 2024, sought production of copies of all files, statements, correspondence, memorandum, records, application forms and all other documents for all accounts, including but not limited to savings and business accounts, cheque accounts, loan accounts, fixed term and all other types of accounts in the name of Ms Goreshter (born 1982) with Australia and New Zealand Banking Group Ltd (although the bank was incorrectly named) from 1 January 2018 to date, closed and current accounts.
Ms Goreshter objected by notice dated 24 April 2024 to the production of all documents on the basis that the documents were likely to contain the names or other sensitive information of the applicant’s clients and that access to such information may place the applicant and her clients at an unacceptable risk of harm. The applicant relied on an identical ground for objecting to the respondent’s inspection of the documents produced.
The second subpoena was also directed to ANZ. It was sealed on 8 May 2024. It was broader than the earlier subpoena yet Ms Zhang informed me that she took no objection to the breadth of the second subpoena. I raised with her the breadth of the subpoena having regard to the observations in Commissioner of Railways v Small.[3] In that case the court held that a subpoena can be set aside if by reason of the breadth of the subpoena the party on whom the subpoena is served is required to fish among his, her or its records in order to ascertain whether documents meet the description set out in the subpoena.
[3] (1938) 38 SR (NSW) 564.
On the second subpoena, the respondent sought production of all files, statements, correspondence, memorandum records, application forms and all other documents for all accounts, including but not limited to savings and business accounts, cheque accounts, loan/mortgage accounts, fixed term and all other types of accounts held in the name of Ms Goreshter and her maiden name (born 1982) with ANZ Bank from 1 January 2018 to 27 March 2024, closed and current accounts, including the accounts …74 and …24 and any accounts linked to the last known address –
(a)PO Box … Suburb D Sydney NSW;
(b)E Street, City F NSW; and
(c)G Street, Suburb H Sydney NSW.
Three bases of objection to the second ANZ subpoena were relied on by Ms Goreshter. First, she said no leave had been given to issuing it. Second, she said the respondent had issued a subpoena in largely similar terms and was therefore an abuse of process. Third, she said production of the documents was likely to contain (she meant ‘disclose’) the names or other sensitive information of the applicant’s clients who gave no consent to the release of their information.
The same grounds were relied on for the applicant’s objection to the respondent’s inspection of the documents sought.
By way of amplification of her client’s grounds of opposition to both production and inspection, Ms Goreshter made an affidavit on 1 May 2024. In that affidavit she deposed to the following –
(a)since 2022 she has been engaged as a service provider for NDIS for self‑managed clients as well as planned and managed clients;
(b)she is bound by the terms of the NDIS code of conduct, which she exhibited;
(c)paragraph 30 of the NDIS code of conduct required her to comply with commonwealth, state and territory privacy laws one of which compels her to keep confidential and undisclosed personal information about her clients unless their consent is first obtained;
(d)the form of consent to be obtained was specified in clause 11 of the conduct of conduct;
(e)in respect of self-managed clients, Ms Goreshter deposed that they pay by electronic funds transfers and all statements on her bank accounts reveal the names and payment details of those payers together with their addresses; and
(f)she seeks orders permitting the redaction of her client’s personal information prior to the respondent inspecting those bank statements or other documents as may be produced in response to either subpoena.
On 9 May 2024, Mr Kamara the respondent’s solicitor, pressed for documents set out in both subpoenae to be produced. Ms Zhang informed me that she believed documents the subject of the first subpoena had in fact been produced to the registry of this court. She agreed to check whether that was the fact. However, even if the documents had been produced then the applicant nevertheless persisted in her objection to the release and inspection of the documents produced unless the documents had been redacted in the manner suggested by the deletion of the applicant’s clients’ personal details.
In debate with Mr Kamara I raised the issue of the proximity of the resumption of the trial to the time required for the bank to comply with the second subpoena. Mr Kamara submitted that his client needed the documents sought by both subpoenae because –
(a)without them the s 79 property adjustment will not proceed with the totality of all available information;
(b)the respondent suspects that some tampering has been engaged in connected with the documentary evidence in the case;
(c)the court will only have the full and true financial picture when it has the documents sought by the subpoena;
(d)the relief sought by the respondent may change once he sees the documents sought by subpoena; and
(e)even if the resumption of the trial is put in jeopardy by reason of the documents under subpoena being produced in strict conformity with the time allowed, then it is more important for the documents to be produced than it is for the trial to resume on the dates ordered.
Mr Kamara submitted that it was essential for there to be no redaction of any information obtained from the bank having regard to his client’s desire to pursue a contention that certain documents have been tampered with.
The code of conduct unquestionably binds the applicant. But by the same token, the implied undertaking in Hearne v Street[4] operates in such manner as to forbid dissemination of documents discovered in litigation for a purpose unconnected with the litigation. In other words, even in their unredacted form, the respondent is forbidden from using any information obtained from the documents for a purpose beyond this litigation. The applicant will not be in breach of her obligations under the NDIS scheme, the applicable legislation, the regulations or the code of conduct if a document produced by compulsion under subpoena finds its way to the respondent because the Hearne v Street[5] undertaking applies.
[4] (2008) 235 CLR 125.
[5] Ibid.
The first subpoena required the bank to produce an array of documents fixed by the reference to a start date in 1 January 2018. That date appeared in consent orders made on 27 March 2024. In my view the subpoena is not too wide nor does it offend principles espoused in Commissioner of Railways v Small[6] or in Woodcock v Woodcock[7]. However it was addressed to the wrong entity. Bank statements are of obvious relevance. Mr Kamara submitted that the bank statements will reveal payments in the applicant’s account as well as payments from her account. Mr Kamara submitted that the bank statements to be produced in response to the subpoena will provide a complete picture of the flow of funds in a manner more comprehensive than has already been put into evidence.
[6] (1938) 38 SR (NSW) 564.
[7] (2021) 64 FamLR 489.
I pointed out to Mr Kamara that even if the documents sought by subpoena are produced to the court, the documents themselves will not axiomatically become evidence in the case, unless the respondent seeks to rely on the business record provisions of the Evidence Act. The documents produced in response to the subpoena can be put to the applicant in cross‑examination.
The first subpoena was issued on 5 April 2024. The applicant has objected to both production and inspection of documents sought. It is likely that the first subpoena has not yet been served. The second subpoena was issued on 2 May 2024. The notice of objection was dated 8 May 2024. The second subpoena has not been served.
As has already been recorded, the notice of objection referrable to the second subpoena records that the second subpoena is an abuse of process because it is similar to the first subpoena. Having compared the two subpoenas, it seems to me that the second subpoena is considerably wider than the first for at least two reasons –
(a)the second subpoena requests an array of documentation in the name of Ms Goreshter as well as in her maiden name; and
(b)the categories of documents sought were linked to one of three last known addresses (in truth two because a post office box was included in addition to an address in City F and an address in Suburb H).
In my view the second subpoena was too wide, it was fishing in nature and it offended the observations in Commissioner of Railways v Small[8]. If permitted to go forward, the second subpoena required the bank to engage in its own investigations and enquiries in order to ascertain whether records in the bank’s possession answered the description of being files, statements, correspondence, memorandum, records, applicant forms “and all other documents” “for all accounts” including but not limited to savings, business, cheque, loan, mortgage, fixed term and “all other types of accounts” held in one of two accounts – Ms Goreshter or her maiden name – between the period 1 January 2018 to 27 March 2024 in respect of closed or current accounts (including two specified accounts) “and any accounts linked to the three last known addresses”.
[8] (1938) 38 SR (NSW) 564.
From that analysis of paragraph two of the second subpoena, the relevant officer of ANZ was required to investigate –
(a)a collection of different categories of documents;
(b)a collection of different accounts;
(c)those two classes of documents (different categories of documents and different categories of accounts) against two names (Ms Goreshter and her maiden name);
(d)those documents and accounts against those two names over more than a six year period;
(e)closed or current accounts; as well as
(f)any accounts linked to two street addresses and one post office box address.
In my view, that subpoena is too wide. It contravenes Commissioner of Railways v Small[9]. I will not allow it. If Mr Kamara had not withdrawn it, I would have made an order setting aside the second subpoena. Paragraph one of the first subpoena is not so broad. I do not agree that any abuse of process is relevant to the first subpoena.
[9] (1938) 38 SR (NSW) 564.
Mr Kamara indicted to me that once documents are produced in response to the first subpoena, it is highly likely that the respondent will apply to amend his response in this proceeding. Whether such an amendment application emerges remains to be seen. If it does, it will fall to be considered in accordance with principles set out in Aon Risk Services Australia Pty Ltd v Australian National University.[10] If such an amendment is sought, it may be necessary to make orders relating to additional evidence. But the resumption of the trial date is fixed for 11 June 2024. By that date this case is most unlikely to be ready to resume as a part heard trial. In my view it is unwise, as a matter of docket management, to keep the resumed trial date of 11 June fixed for this case. There may be delays in the bank producing documents in response to the first subpoena, the documents produced may provoke the respondent into applying to amend and if so he may seek leave to adduce further evidence. Other cases pending in my docket crying out for trial dates are being prejudiced by maintaining the trial resumption date of 11, 12, 13 and 14 June 2024. I will vacate those trial dates and instead list this proceeding for mention on 11 June 2024.
[10] (2009) 239 CLR 175.
Mr Kamara pressed for leave to re-issue the first subpoena once it is addressed to the correct party. He should have that leave.
The formal orders I pronounce are now set out.
I dismiss the applicant’s subpoena issued by the respondent to Australia and New Zealand Banking Gorup dated 5 April 2024 giving the respondent leave to issue a new subpoena in the name of the correct entity.
The subpoena issued by the respondent to Australia and New Zealand Banking Group Pty Ltd dated 2 May 2024 is withdrawn.
The further hearing of the proceeding is adjourned for mention on 11 June 2024.
I vacate the resumption of the trial of this proceeding on 11 June 2024.
Costs of and incidental to all matters referable to the two subpoenae and applications for their setting aside are reserved.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 15 May 2024
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