Halaby & Koroma
[2023] FedCFamC1F 820
•20 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Halaby & Koroma [2023] FedCFamC1F 820
File number: PAC 4909 of 2017 Judgment of: CAMPTON J Date of judgment: 20 September 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – Objections to subpoenas –Where the husband caused subpoenas to issue for the purposes of arbitration – Where the recipients object on the basis of absence of relevance, abuse of process and oppression – Where the husband establishes apparent relevance – Where paragraphs in the schedule of a subpoena amount to a fishing expedition are struck out Legislation: Family Law Act 1975 (Cth) s 13E
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 15.3, rr 15.23, 15.26
Cases cited: National Employers’ Mutual General Insurance Association v Waind and Hill [1978] 1 NSWLR 372 Division: Division 1 First Instance Number of paragraphs: [15] Date of hearing: 20 September 2023 Place: Sydney Solicitor for the Applicant: Ms Swift Solicitor for the First Respondent: Ms Hawach Solicitor for the Second Respondent: Mr Azar ORDERS
PAC 4909 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MATIN
Applicant
AND: MR HALABY
First Respondent
MS KOROMA
Second Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
20 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The objection dated 18 August 2023 taken by Mr Matin to the subpoena issued at the request of the First Respondent husband directed to Transport for New South Wales on 8 August 2023 is dismissed.
2.The objection dated 11 September 2023 taken by Mr Matin to the subpoena issued at the request of the First Respondent husband directed to him personally on 4 September 2023 be upheld in part in that paragraphs 8 through to 11 inclusive in the schedule to the subpoena are struck out and the balance of the notice of objection is dismissed.
3.The time for Mr Matin to comply with the said amended subpoena issued 4 September 2023 and directed to him personally be extended until 4 October 2023.
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 the pseudonym Halaby & Koroma has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
These are proceedings listed in the New South Wales National Arbitration list subsequent to an order made by a judge of the Federal Circuit and Family Court of Australia (Division 2) at Parramatta on 4 September 2023, consensually referring the financial proceedings pursuant to s 13E of the Family Law Act 1975 (Cth) (“the Act”) for arbitration.
The arbitration hearing is listed before Mr B to occur over two days in December 2023.
The financial proceedings were commenced by the wife on her filing an Initiating Application on 27 January 2018 seeking orders adjusting property between she and the husband. The husband filed a response on 31 January 2019 seeking different orders for the adjustment of property.
The husband and wife married in 1990 and separated on or about 1 March 2016. An order for divorce was made in 2017. The wife remarried Mr Matin, the objector, in late 2019.
Subpoenae for the production of documents have been issued for the purposes of the arbitration at the request of the husband directed to Transport for New South Wales on 8 August 2023 and to Mr Matin personally on 4 September 2023. Mr Matin has filed notices of objection to the said subpoena on 18 August 2023 and 11 September 2023 respectively.
These reasons determine each notice of objection. Mr Matin has appeared today by way of his solicitor, Ms Swift. The wife did not wish to be heard on the objections.
A subpoena is an ex parte order of the court requiring the production of documents from a stranger to the proceedings. Part 15.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) regulates the issue of a subpoena to produce documents.
Rule 15.26 confirms that the recipient of a subpoena has standing to object to a subpoena. The objections taken by Mr Matin are to the inspection of some of the documents produced by Transport for New South Wales and to all of the documents sought to be produced pursuant to the subpoena directed to him. His grounds of objection include an absence of relevance, an abuse of process, or oppression as to the nature and quantity of documents identified in the schedule to the issued subpoena.
The fundamental principle in relation to an objection relating to relevance is an absence of apparent relevance to the documents sought to be produced on subpoena (see National Employers’ Mutual General Insurance Association v Waind and Hill [1978] 1 NSWLR 372). Hence, the pivotal issue for determination is the apparent relevance of the documents sought to be produced to the proceedings.
It is the husband’s case that a number of subpoenae have been issued to financial institutions and documents have been produced going to the subject matters of documents now sought. The produced documents record that, in the period from 2019 to 2022 a sum of $760,000 has moved by way of 29 separate transactions relating to motor vehicles of which Mr Matin has an interest in or is an owner. He identifies that the wife, by way of an affidavit filed previously in the proceedings, has outlined the financial relationship between she and Mr Matin as her present husband and how Mr Matin provides support for her.
The husband, to my mind, has established the apparent relevance as to the general categories of documents as sought in the schedules and hence the objections taken by Mr Matin in relation to either subpoena grounded from an absence of apparent relevance are not made out.
In relation to the subpoena directed to Transport for New South Wales as issued, I am told and accept that documents have been produced by that government body and are available for inspection. I am not satisfied that the objector, Mr Matin, has established that the documents produced by Transport for New South Wales constitute a fishing expedition and, in the circumstances, his objection to the subpoena directed to Transport for New South Wales for the inspection of documents will be dismissed.
The subpoena directed to Mr Matin personally has additional grounds of objection in that the quantity of the documents sought to be produced are voluminous and oppressive, coupled with the contention as to the subpoena, in reality, being an alternate process to discovery and a fishing expedition. There is no evidence before me in that there has been a request made of the wife to produce any of Mr Matin’s financial documents as sought in the subpoena issued to him personally. The subpoena seeks an extremely broad range of documents that might be described as relevant to Mr Matin’s financial circumstances for the period 1 July 2018 to date.
As to that subpoena, at this time, I am not satisfied that the documents sought in paragraphs 8 through to 11 inclusive, are any more than a fishing expedition. Paragraphs 8 through to 11 of the said subpoena will be struck out. I am satisfied as to the apparent relevance, as indicated earlier in these reasons, of the documents sought in paragraphs 2 through to 7 of the schedule to the subpoena and, in so far as the objection relates to the said paragraphs, the objection will be dismissed.
In the event there is a proper claim for costs as to compliance with the said subpoena, Mr Matin can make such application as he considers appropriate pursuant to rule 15.23, to receive sufficient moneys to be reimbursed for any loss or expense he incurs greater than the conduct money tendered at the time the subpoena was served. Such application can be made subsequent to his compliance with the subpoena.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 4 October 2023
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