Goreshter & Goreshter (No 3)
[2024] FedCFamC1F 446
•1 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Goreshter & Goreshter (No 3) [2024] FedCFamC1F 446
File number(s) PAC 2908 of 2020 Judgment of WILSON J Date of judgment 1 July 2024 Catchwords FAMILY LAW – EVIDENCE – subpoena – notice of objection to a subpoena – application by the applicant to set aside on three grounds – application dismissed. Legislation Family Law Act 1975 s 121 Cases cited Esso Australia Pty Ltd v Australian Workers Union [2020] FCA 316
Goreshter & Goreshter (No 2) [2024] FedCFamC1F 306
Hearne v Street (2008) 235 CLR 125
Woodcock v Woodcock (2021) 64 FamLR 489
Division Division 1 First Instance Number of paragraphs 22 Date of last submission 27 June 2024 Date of hearing 27 June 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
1 JULY 2024
THE COURT ORDERS THAT the three grounds of objection to production of documents pursuant to the subpoena dated 24 May 2024 issued by the respondent are 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).
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).
REASONS FOR JUDGMENT
WILSON J
On 27 June 2024 I heard argument about objections to the latest subpoena issued by the husband pursuant to leave granted by me on 15 May 2024.[1]
[1] [2024] FedCFamC1F 306.
THE LATEST SUBPOENA
The latest subpoena was filed on 24 May 2024 at 6.21pm. It is addressed to the proper officer, Australia and New Zealand Banking Group Ltd at its address. In the subpoena the respondent seeks production of –
“copies of all files, and bank statements in respect of all accounts of [Ms Goreshter] (born […] 1982) with the ANZ Banking Group Limited, including but not limited to savings, and business accounts, cheque accounts, loan accounts, fixed term and all other types of accounts held in the same name from 1 January 2018 to date; closed and current.”
The applicant objected to the production of documents in response to the 24 May 2024 subpoena. The notice of objection was filed on 5 June 2024. The applicant relied on three grounds of objection, namely –
(a)the documents produced are likely to contain the names or other sensitive information about the applicant’s clients who have not given consent to release their information;
(b)the clients’ names and addresses are irrelevant to the proceeding; and
(c)the clients’ names and addresses should be redacted before the inspection.
THE APPEARANCE ON 15 MAY 2024
In ex tempore reasons handed down on 15 May 2024, I adjourned the further hearing of this proceeding to 11 June 2024 for debate about the subpoena and to enable the respondent’s solicitor to explain the circumstances in which the respondent’s property was once the subject of a sequestration order then that order was subsequently discharged. It seemed to me to be important to know whether the respondent’s assets were controlled by a trustee-in-bankruptcy or whether, as the respondent’s solicitor asserted, they were not.
THE RESPONDENT’S AFFIDAVIT
The respondent filed an affidavit he made on 21 June 2024. In it he deposed to the following relevant matters –
(a)he and the applicant married in early 2016 and separated in late 2019;
(b)parenting orders have been finalised;
(c)on 6 May 2021 a sequestration order was made against him;
(d)on 2 November 2023, pursuant to the orders of his Honour Judge Champion the sequestration order made on 6 May 2021 was set aside;
(e)the respondent’s company, J Pty Ltd, was sued by K Pty Ltd, which obtained judgment against J Pty Ltd leading to a winding up order being made by the Supreme Court of Victoria in early 2021;
(f)the respondent is seeking the documents under subpoena to demonstrate that the applicant has failed to make full and frank disclosure of her taxable income for the year ended 30 June 2023; and
(g)the applicant has previously provided disclosure of documents relevant to the applicant and ANZ without redaction.
BASES OF OBJECTION
The applicant advanced three grounds as her bases for objecting to the production of documents.
The first ground of objection was that the documents were likely to contain the names or other sensitive information of the applicant’s clients who had not consented to the release of that information.
Several things must be said of that alleged ground.
First, in Goreshter & Goreshter (No 2)[2] I considered and rejected that ground in relation to an earlier version of a subpoena for the production of documents to which the applicant objected. The same reasons prevail in relation to the same ground in reference to the subpoena issued on 24 May 2024 to Australia and New Zealand Banking Group Ltd.
[2] [2024] FedCFamC1F 306.
Next, the documents have not yet been produced so the assertion by the applicant that “the documents are likely to contain” certain things is purely speculative.
Next, whether the documents produced contain information about the applicant’s clients cannot be presumed.
Next, the applicant does not say why whatever information may (repeat may) be revealed by the production of the documents sought is sensitive. Sensitivity (whatever that means) is not a recognised legal basis for refusing to produce documents, the production of which has otherwise been validly enlivened.
Next, precisely who may be named (if anyone) on the documents production of which is sought is not presently known and will not be known until the documents are produced so questions of consent and from whom are irrelevant.
Next, the “other sensitive information” mentioned in ground one of the objection is not identified. In the absence of the applicant identifying precisely what is said to fall under the rubric of “other sensitive information”, it is not possible to make sense of the assertion.
Ground one of the notice of objection failed.
The subpoena was otherwise compliant with the apparent relevance test canvased by me in Woodcock v Woodcock.[3]
[3] (2021) 64 FamLR 489.
The second ground of objection was that “the clients’ names and addresses are irrelevant to the proceedings.”[4]
[4] There is one proceeding only in this litigation so the plural use of the word “proceedings” was wrong when used in ground two.
The applicant misstates the relevant principle. The respondent seeks documents from a bank with a view to divining certain financial information that is said to support or to contradict what is said about the applicant’s earnings. Without yet knowing what information the documents sought actually reveal, the applicant fears that the bank statements will disclose more than merely her income but instead will reveal information of the sort I set out in Goreshter & Goreshter (No 2).[5] She may be correct. By the same token, until the documents are in fact produced it cannot be said with certainty that her fears about the information on the documents sought are well-founded. To the extent that the documents in the 24 May 2023 subpoena ask for the financial information described in the subpoena, then the subpoena meets the apparent relevance test set out in the authorities surveyed in Woodcock v Woodcock.[6]
[5] [2024] FedCFamC1F 306.
[6] (2021) 64 FamLR 489.
But it is the financial information in the documents sought that will be relevant, not peripheral information including the names and addresses of the applicant’s clients.
In any event, production of the documents sought does not thereby convert the information in the documents into evidence in the trial of this proceeding. The bank statements would need to be adduced in to evidence, possibly under the business records provisions of the Evidence Act. More likely, the information on the bank statements will be the subject of cross-examination of the applicant. Her answers to any such questions put would become evidence. So when, in ground two, the applicant asserts that the applicant’s “clients’ names and addresses are irrelevant to the proceedings” (sic), the names and addresses are not an issue in the proceeding. The financial information on the bank statement is, however.
On ground three of her notice of objection, the applicant contended that the applicant’s clients’ names and addresses should be redacted before inspection. By that assertion the applicant impermissibly conflated the process of production with the process of inspection. The two are quite separate. At all events, redaction is not automatic, as was held in Esso Australia Pty Ltd v Australian Workers Union[7] which I applied in Woodcock v Woodcock.[8] Documents may be redacted by agreement. Usually, documents that are not redacted are ordered. In my view, documents that are not redacted must be produced. To the extent that the applicant is concerned about the use to which the documents may be put by the respondent, I pointed out in Goreshter & Goreshter (No 2)[9] that the respondent and his legal team are bound by the obligations in Hearne v Street[10] so dissemination of information derived by disclosure is not permitted. Section 121 of the Family Law Act prevents dissemination of information derived from litigation in this court.
[7] [2020] FCA 316.
[8] (2021) 64 FamLR 489.
[9] [2024] FedCFamC1F 306.
[10] (2008) 235 CLR 125.
ORDERS
The three grounds of objection to production of documents pursuant to the subpoena dated 24 May 2024 issued by the respondent are dismissed.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 1 July 2024
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