Granger & Granger

[2021] FedCFamC2F 545

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Granger & Granger [2021] FedCFamC2F 545

File number(s):

PAC 4554 of 2011

Judgment of:

JUDGE OBRADOVIC

Date of judgment:

22 December 2021

Catchwords:

FAMILY LAW – Objection to subpoena – whether the subpoenaed material is relevant – whether abuse of process – whether subpoena used for discovery subpoena – set aside.

Legislation:

Federal Circuit Court of Australia Rules 2001 rr. 15A.09, 15A.14
Federal Circuit and Family Court of Australia (Family Law Rules) 2021 r.6.33.

Cases cited:

Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Ltd (1955) 72 WN (NSW) 250
Brebner & Shardlow [2019] FamCA 800
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Hatton & A-G for the Commonwealth & Ors [2000] FamCA 892
National Employers Mutual General Insurance Assn Ltd v Waind [1979] HCA 11
National Employers Mutual General Association Ltd v Waind & Hill [1978] 1 NSWLR 372
One.Tel Ltd (in liq)-SingTel Optus Pty Ltd v Weston [2010] NSWSC 1491
Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921

X Pty Ltd v Merhi [2015] FamCA 622

Division:

Division 2 Family Law

Number of paragraphs:

25

Date of hearing:

25 November 2021, 1 and 16 December 2021

Place:

Parramatta

Appearing for the Applicant: 

Ms Parks

Solicitors for the Applicant: 

Banksia Family Lawyers

Appearing for the Respondent: 

Ms Bailey

Solicitors for the Respondent: 

Rebecca Bailey & Associates and subsequently Helen Volk Lawyers

ORDERS

PAC 4554 of 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR GRANGER

Applicant

AND:

MS GRANGER

Respondent

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	22 DECEMBER 2021

THE COURT ORDERS THAT:

1.Order 3 made on 23 August 2021 is set aside.

2.The subpoena issued to the Commissioner of Police, New South Wales Police Force on 16 August 2021 is set aside.

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 Granger & Granger has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE OBRADOVIC:

1. These are reasons for judgement with respect of objections to a subpoena issued to the Commissioner of Police, New South Wales Police Force, dated 16 August 2021.

2. The subpoena requires the production of police records relating to the respondent’s three brothers. Service of the subpoena has been effected on all relevant persons.

3. On 23 August 2021, the Court granted the parties’ legal representatives electronic access to all material produced under subpoena. The documents have not yet been inspected.

4. The orders granting access were made on 23 August 2021, prior to the expiration of the period for the filing of a Notice of Objection provided for in the then applicable FCC Rules, more specifically rule 15A.14. As such, it is appropriate that those orders be set aside.

5. The first Notice of Objection was filed on 31 August 2021, after documents were produced to the Court and after access was granted to the parties’ legal representatives to inspect the documents.

6. There has been no application to vary, set aside, stay or appeal the orders made on 23 August 2021. However, the subpoenas had not been served on the respondent’s siblings, who are interested persons for the purposes of the then applicable FCC Rules, until 30 November 2021. This was not a matter which the Court was notified about until the Notice of Objection filed 31 August 2021, was listed for first return on 25 November 2021.

7. On 1 December 2021, the Court made an order that any further Notice of Objection to the subpoena were to be filed within 14 days. Each of the respondent’s brothers has now also filed a Notice of Objection.

   Objections to Subpoena

8. The subpoena is firstly objected to by the respondent on the basis that the documents sought have no relevance to the issues in dispute in circumstances where there are no orders sought in relation to the respondent’s brothers. The subpoena is secondly objected to by the respondent on the basis that it is a mere fishing expedition and an abuse of process.

9. Each of the brothers objects to the subpoena as well. The grounds of objection are identical as between them, and do not add to the relevance arguments raised by the respondent. The brothers each say that not every interaction they have had with the Police since they became adults could have relevance to their sister’s parenting case. They also object on the basis that their records are private and they do not want the applicant to have access to their private information.

   Relevance

10. In Brebner & Shardlow [2019] FamCA 800 (“Brebner”) Loughnin J noted as follows:

    [15] In Kelton & Brady and Anor (2017) FLC 93-799 the Full Court of this Court noted that it had previously been established that a proper basis for objecting to a subpoena is that the documents do not have “apparent relevance” to the issues in the proceedings. It was further explained at [16]:

    In so holding for the purposes of proceedings in the Family Court, the Full Court in Hatton, above, cited with approval what was said by Beaumont J in Trade Practices Commission v Arnotts Ltd and Ors (No 2):

    … Does the material sought have an apparent relevance to the issues in the principal proceedings, ie, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent?  This involves a consideration of the matter from the standpoint of [the person at whose request the subpoena was issued].

    [16] A phrase often used to describe the test for relevance is, whether it is “on the cards” that some useful material to support the issuer’s case will be found within the description in the subpoena. Therefore I am to consider the proposed subpoenas in that light.

    (footnotes omitted)

11. A subpoena is also at risk of being set aside if its terms are so wide that “… it imposes an onerous task on a stranger [to the litigation] to collect and produce documents many of which have no relevance to the litigation” (National Employers Mutual General Association Ltd v Waind & Hill [1978] 1 NSWLR 372 at 382, referred to in X Pty Ltd v Merhi [2015] FamCA 622 at [32]).

12. The onus of establishing relevance rests on the issuing party (Hatton & A-G for the Commonwealth & Ors [2000] FamCA 892).

    Fishing Expedition and Abuse of Process

13. Often described as a “fishing expedition” but more precisely being a requirement for “reasonable particularity”, a subpoena is objectionable on the basis that it constitutes impermissible “fishing” (Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Ltd (1955) 72 WN (NSW) 250 at 254).

14. In addition, the fundamental principle is that subpoenas should identify the documents sought with reasonable particularity (Commissioner for Railways v Small (1938) 38 SR (NSW) 564 (“Small”) at 573; Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 926; One.Tel Ltd (in liq)-SingTel Optus Pty Ltd v Weston [2010] NSWSC 1491 at [39]-[41]).

15. A subpoena that does not describe the documents with sufficient particularity is liable to be set aside (National Employers Mutual General Insurance Assn Ltd v Waind [1978] 1 NSWLR 372 and on appeal National Employers Mutual General Insurance Assn Ltd v Waind [1979] HCA 11; Small at 573–4).

16. In Brebner, Loughnin J further noted as follows:

    [22] In Hennessy v Wright (No 2) (1890) 24 QBD 445 at 448 Lord Esher described the conduct which subsequently gave rise to the concept of a “fishing expedition” as occurring where:

    … the plaintiff wishes to maintain his questions, and to insist upon answers to them, in order that he may find out something of which he knows nothing now, which might enable him to make a case of which he has no knowledge at present.

    [23] In Kelton & Brady [2017] FamCAFC 186; (2017) FLC 93–799 the Full Court referred to the observations of Wigney J in Gloucester Shire Council v Fitch Ratings Inc [2016] FCA 587 (Fitch) as follows:

    … A finding of “fishing” amounts to a finding that the subpoena has no legitimate forensic purpose because the documents are sought to discover if the issuing party has a case, not to support a case that has already been articulated: Cmr for Railways v Small [1938] NSW St Rp 29; (1938) 38 SR NSW 564 at 574.

    As Wigney J also observed in Fitch there is a connection between a conclusion that a subpoena is a fishing expedition and the question of oppression. Wigney J observed (at [24]):

    … A finding of “fishing” also appears to involve a question of oppression. A subpoena will be more readily set aside if greater numbers of documents are required to be produced in circumstances where it cannot be demonstrated that they are likely to be sufficiently relevant…

    (footnotes omitted)

    Determination

17. The schedule of the subpoena in question sets out the documents which are sought:

    a.Paragraph 2 seeks the production of “any and all records” in relation to “Mr B of Town C, NSW date of birth between 1986 and 1987”;

    b.Paragraph 3 seeks the production of a large number of documents “created by NSW police for the purpose of any of the following proceedings involving Mr B”:

    (a) AVO Application by Mr D for Mr B v Ms E case number …;

    (b) Breach of Bond Court Proceedings at Wollongong Local Court involving Mr B such proceedings being referred to as R v Mr B case number …;

    (c) AVO Applic. SENCON Mr F for Ms E v MR B case number …;

    (d) R v MR B case number …;

    (e) AVO Application SENCON Ms G for Ms E v MR B case number …;

    (f) R v MR B case number …;

    (g) AV Applic. SENCON Ms G for Ms E v MR B case number …;

    (h) R v MR B case number …;

    (i) R v MR B case number …;

    (j) AV Applic. SENCON Mr H for Mr J v MR B case number …;

    (k) AV Applic. SENCON Ms K for Ms L v MR B case number …;

    (l) R v MR B case number …;

    (Emphasis in original)

    c.Paragraph 4 seeks the production of “any and all records” in relation to “Mr M of Town N, NSW date of birth between 1983 and 1985”;

    d.Paragraph 5 seeks the production of “any and all records… an incident involving Mr M and Mr O following at Suburb P, NSW on 2 December 2007” (sic); and

    e.Paragraph 6 seeks the production of “any and all records… an incident involving Mr J, Suburb Q NSW” (sic).

18. The proceedings in question are parenting proceedings. Neither party seeks any orders concerning or relating to the respondent’s siblings. This is despite the evidence in the applicant’s case as follows:

    I am not attempting to denigrate Ms Granger's family but I am concerned about the behaviour X is being exposed to whilst in Ms Granger's care. In relation to Ms Granger's brothers I am aware:

    a.That on 25 March 2016 one of her brothers was intoxicated and become aggressive towards Ms Granger and another of her brothers. Ms Granger called the police but denied her brother had "punched anyone." This information was contained in the COPS records produced by NSW Police as a consequence of a subpoena I issued in these proceedings. I will seek leave to tender the COPS record for 25 March 2016 at any interim hearing;

    b.In May 2016 X told me that one of his uncles had "gone really drunk" and "one day my uncle went really drunk and tried to buy a gun to shoot some people" and "we are trying to get him put in gaol". When I raised X’s comments with Ms Granger she told me that "Mr B has gone off the rails a bit of late (drinking a lot) and has been giving Mr M and his wife a lot of grief resulting in Mr M taking an AVO out against him. We have had no problems or involvement in their issues". Ms Granger's assurance that she was not involved in Mr B’s issues is clearly untrue in light of the subpoena material. A copy of the text exchange between Ms Granger and me is annexed hereto to this affidavit and marked "P".

    c.I recently located a newspaper article dated 3 October 2016 about Ms Granger's brother Mr M. It states Mr B blowing 0.252 in a road-side breath test. The article also refers to a 2014 DUI charge and to a "breach of a previous bond for stalk and intimidate and damaging property". A copy of the article is annexed hereto to this affidavit and marked" Q".

    d.In 2007 Mr M, while working as a bouncer in Suburb P unlawfully assaulted a pedestrian, Mr O. It resulted in serious brain injury and led to Mr O's death in 2013. Supreme Court Justice R said the evidence "satisfies me that [Mr O] was the subject of an unlawful assault" and there was "no possibility" Mr M was acting in self-defence. A copy of the newspaper article I have discovered relating to the court proceedings in 2013 is annexed hereto to this affidavit and marked "R".

    e.I have recently accessed some NSW Court lists and understand from these that:

    i.Mr B had several matters before Courts in the period 2016 to 2018 including ADVO's for his partner Ms E and a Ms L. A copy of Mr B Mr B's court records are annexed hereto to this affidavit and marked "S".

    ii.In 2016 Police took out an ADVO against Mr B on behalf of Ms Granger's other brother Mr J. This ADVO is also listed in Mr B's court records.

    (Annexures omitted)

19. There is no suggestion that the child has been subjected to or exposed to abuse, neglect or family violence arising from the respondent’s siblings’ behaviours. What has been identified in the applicant’s evidence are historical events, the earliest of which occurred more than 5 years ago and the latest of which occurred some 14 years ago.

20. Paragraphs 2, 3, 4, 5 and 6 of the schedule are a fishing expedition in that the documents sought cast the net so wide so as to in reality be a substitute for discovery. Furthermore and perhaps more importantly, their relevance has not been established.

21. The Court is satisfied that the respondent’s objection should be upheld.

22. The respondent’s Notice of Objection was filed on 31 August 2021 (prior to 1 September 2021 and in the then named Federal Circuit Court of Australia, now Federal Circuit and Family Court of Australia Division 2). It objects to the production of documents and inspection of documents. It does not specifically make application to set aside the subpoena.

23. The Court has the power to set aside the subpoena pursuant to rule 6.33 Federal Circuit and Family Court of Australia (Family Law Rules) 2021, and previously rule 15A.09 Federal Circuit Court of Australia Rules 2001 (“FCC Rules”). 

24. It is appropriate, given the findings made herein, that the subpoena be set aside. 

25. For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be set made.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

Associate:

Dated: 22 December 2021