Hall & Hall and Anor (Objection to Subpoena)
[2014] FamCA 407
•17 June 2014
FAMILY COURT OF AUSTRALIA
| HALL & HALL AND ANOR (OBJECTION TO SUBPOENA) | [2014] FamCA 407 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – husband issued subpoena to produce documents in relation to the wife’s deceased father’s Will and estate – wife’s mother and brothers filed objections – objectors argued the subpoenas were oppressive and constituted a “fishing” exercise – objectors also argued documents were subject to client legal privilege, confidentiality and inadmissible in these proceedings – consideration of s 121 of the Family Law Act 1975 (Cth), injunction to protect privacy |
| Family Law Act 1975 (Cth) s 121 Family Law Rules 2004 (Cth) r 15.27 |
| Commissioner for Railways v Small (1938) 38 SR (NSW) 564 |
| APPLICANT: | Mr Hall |
RESPONDENT | Ms Hall |
| OTHER PARTY: | Mr Simons |
| FILE NUMBER: | ADC | 3671 | of | 2013 |
| DATE DELIVERED: | 17 June 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 14 March 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr O'Shannessy |
| SOLICITOR FOR THE APPLICANT: | Kennedy Partners |
| COUNSEL FOR THE RESPONDENT: | Mr Ackman, QC (with Mr Werner) |
| SOLICITOR FOR THE RESPONDENT: | Barnes Brinsley Shaw |
| COUNSEL FOR THE OTHER PARTY: | Mr Whitington, QC |
| SOLICITOR FOR THE OTHER PARTY: | Simons Law Firm |
Orders
The four Notices of Objection filed on 10 January 2014 are dismissed.
The subpoenaed persons comply with the subpoenas within fourteen [14] days from today.
Each party is restrained and an injunction is granted restraining them from providing any information or copies of any documents obtained from the subpoenas to any person other than their legal representatives and any person assisting the legal representatives as experts in these proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hall & Hall and Anor (objection to subpoena) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 3671 of 2013
| Mr Hall |
Applicant
And
Ms Hall
Respondent
And
| Mr Simons |
Other Party
REASONS FOR JUDGMENT
Introduction
In property settlement proceedings between the applicant wife, Ms Hall and the respondent husband, Mr Hall, the solicitors for the husband issued four subpoenas on 26 November 2013. The subpoenas were directed to the wife’s mother and her three brothers. Each subpoena sought production of documents relating to the Will and estate of the wife’s late father.
Following upon the service of the subpoenas the relevant parties, who were the subject of the subpoena, filed Notices of Objection. Following upon the filing of supporting documents and outlines of argument, the issues concerning the objections to the subpoenas were heard on 14 March 2014. At that hearing the husband was represented by Mr O’Shannessy, the wife by Mr Ackman, QC and each of the parties, the subject of these subpoenas, by Mr Whitington, QC. Judgment was reserved.
Summary of relevant background
Proceedings between the husband and wife commenced in October 2013. The issues in relation to both financial matters and the children of the parties are yet to be finalised.
The parties were married in 2001. They separated in 2013. There are two children. There have been significant issues in relation to the disclosure, discovery, value of assets and liabilities and the financial resources of each of the parties.
Prior to the separation of the parties, the father of the wife died in 2009. The husband alleges that the wife’s family is very wealthy. He describes the family as “one of the wealthiest families” in Adelaide and describes the businesses as “an enormous business empire”. It is conceded by the wife that the businesses previously operated through various entities by her father and brothers were significant and the subject of media reports asserting great wealth.
The wife conceded that her father Mr G S died in 2009. It is agreed that he was survived by his spouse (the wife’s mother) and the four children being the wife and her three brothers. One of the brothers was described as the “executor and trustee” (Mr C S) of the deceased estate.
Relevant documents
The subpoenas issued by the solicitors for the husband on 27 November 2013 were directed to each of the wife’s mother and her three brothers. They required the production of the following documents:
1.A copy of the Will (and any related documents) of your father the late MR [G S] who died in 2008.
2.A Statement of the assets and liabilities of his Estate and/or such documents that set out the assets and liabilities of his Estate.
3.A copy of the Probate of the said [Mr G S’s] Will.
4.Any Deeds, documents or other written material relating to variations of his Will or a Deed of Family Arrangement or Deeds of Family Arrangements.
5.Any written advice and/or documents in relation to the winding up or delay in winding up of his Estate.
The Notices of Objection to the subpoena were filed on 10 January 2014. Each of the four Notices of Objection are hand-written and appear to be signed by the solicitor for the objectors, Mr [Simons].
The reasons given for the objection to the production and inspection or copying of any of the documents reads as follows:
(i)Subpoena is oppressive, seeks irrelevant documents (“Fishing”).
(ii)Documents subject to client legal privilege, confidentiality and inadmissible in these proceedings.
On 20 February 2014 the solicitor for the objectors filed an affidavit relating to the objections to the subpoenas. The Court also received the objector’s Outline of Argument.
Prior to the issue of the subpoenas the wife filed a Financial Statement on 8 November 2013 in which the wife listed the estate of her father as a “financial resource” with “unknown” value. In her affidavit filed on 8 November 2013 the wife asserted that she did not know the contents of her father’s Will, nor did she have a copy of the Will in her possession, nor had she ever seen a copy of the Will.
The Law
Part 15.3 of Chapter 15 of the Family Law Rules 2004 (Cth) (“the Rules”) deals with subpoenas.
(a)Oppressive / irrelevant (“fishing”)
In Epstein & Epstein (1993) FLC 92-384 the subpoenas were set aside because they were described as “oppressive” due to the large amount of documents referred to over a particularly lengthy period.
In the recent case of Martin & Martin and Anor [2014] FamCA 232 Cronin J referred to the question of whether the subpoenas were “fishing” and whether the document was relevant. His Honour said at paragraph 28:
28.In my view, the objection on the grounds of both fishing and relevance fails. As Gibbs CJ said in Alister v R [1984] HCA 85; (1984) 154 CLR 404 albeit in a criminal law case, the focus of the Court should be whether it was “on the cards” that the documents would materially assist. “Fishing” can be argued where the pursuit of information is random, unguided and the pursuer has no case but seeks to build one. Here, NFL says that it knows what it is looking for even if it cannot specifically point to the exact sequence of events. It submits that the documents pursued will provide the answers to fill in the missing details as distinct from providing it with a case. As I understand NFL’s submission, this is an extension or further step based on that information. As such, I would not find the exercise to be fishing. Is it documentation that is therefore relevant? In Woley and Humboldt (No 3) [2009] FamCA 546 I said:
39.In Hudson Timber and Hardware Ltd v Chaudhary Group Pty Ltd [2002] FCA 832 the Full Court of the Federal Court examined the issue of apparent relevance and said that the relevant principles governing the obtaining of documents on subpoena which have “apparent relevance” were that inter alia:
(1)The relevance of documents was not limited to documents directly admissible in themselves in proof of an issue raised in pleadings; and
(2)If a class of document which has material forensic relevance could be shown to exist, then a subpoena would not normally be set aside.
40.In White v Tulloch (1995) FLC 92-640, the Full Court of the Family Court referred to the test in terms of documents having "a sufficient apparent connection to justify their production or inspection".
41.In Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306, Beaumont J saw relevance as something where a document "could possibly throw light on the issues in the main case".
42.In Portal Software International Pty Ltd v Bodsworth, [2005] NSWSC 1115, Brereton J looked at a number of authorities including of this Court and said:
Thus it is plainly not the question at this (first) stage whether the documents, production of which is sought, will definitely advance the case of the parties issuing the subpoena, nor whether they will be admissible in evidence at the trial. It is sufficient that they could "possibly throw light" on the issues in the substantive proceedings, or that it appears to be "on the cards" that they will do so. What are the issues in the proceedings will appear from the pleadings (where there are pleadings), the affidavits, and the legal principles which govern the claims for relief in the substantive proceedings.
29.Counsel for the objector did not dispute that what I had there said summarised the law. In Papadopoulos and Papadopoulos (No 2) [2007] FamCA 1683, I observed:
49.The question of what is relevant takes on significance. The objective must be to assist the parties and the court in the determination of the issues in dispute. How does one determine that at an early stage? This issue was considered in the Victorian Supreme Court in Killorgan Investments Pty Ltd v Baycorp Advantage Business Information Services Limited and Ors where Byrne J said:
The degree of relevance for this purpose is not high: the inspecting party need only show a legitimate forensic purpose in the inspection. A party is entitled to inspect documents not only to see if they contain relevant facts, but also to see if they contain information which may be proved otherwise than through that document.
50.Accordingly, the bar is not set very high in respect to the question of relevance in a civil proceeding as between strangers. It should be less so in family law proceedings provided the pursuit of information is genuinely designed to assist in determining the issue and not for some illicit or harassing type of reason.
51.The onus in establishing the relevance lies on the person seeking the production of the documents either by way of subpoena or through discovery.
Hatton v Attorney-General of the Commonwealth of Australia and Commonwealth Bank of Australia and Commonwealth Development Bank of Australia (2000) FLC 93-038 refers to various authorities and concludes that notwithstanding the absence of any specific directions in the Rules the Court has the power to set aside a subpoena and that the question of relevance is an issue to be determined when considering the argument that the subpoenas are oppressive or “fishing”.
One of the issues raised in the objections to the subpoena was whether the subpoena was oppressive. In the Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573 it was stated:
A writ of subpoena duces tecum may be addressed to a stranger to the cause or to a party. If it be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced … a stranger to the cause ought nought to be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon the issues which he is presumably ignorant …
As was accepted in the submissions of counsel for the objectors, confidentiality in itself is not a basis upon which to resist the subpoena, but may be a factor to be taken into account when considering the necessity to enforce production which might be argued to be oppressive.
(b)Confidential
Section 121 of the Family Law Act 1975 (Cth) (“the Act”) provides:
(1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a)a party to the proceedings;
(b)a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c)a witness in the proceedings;
is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
The question of confidentiality also raises the issue of what has been described as an “implied undertaking” arising out of the decision of Harman v Secretary of State for Home Office [1983] 1 AC 280 which was supported by the High Court of Australia decision of Hearne v Street (2008) 235 CLR 125 where at 154 the High Court said:
Where one party to the litigation is compelled either by reason of a rule of Court or be reason of a specific order or otherwise, to disclose documents for information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.
Rule 15.27 of the Rules provides that:
(1)This Division applies to a subpoena for production.
(2)A person who inspects or copies a document under these Rules or an order must:
(a)use the document for the purpose of the case only; and
(b)not disclose the contents of the document or give a copy of it to any other person without the Court’s permission.
The Rule is much more extensive than the provisions in s 121.
The Full Court decision of Sitwell & Sitwell [2014] FamCAFC 5 discussed the law in relation to an injunction which was sought to protect the privacy of one of the parties. After discussing a significant number of authorities, the Full Court referred to:
the fundamental question in this appeal relates to the circumstances in which an injunction can be granted to prevent a threatened or anticipated breach of Family Law Act section 121 (Paragraph 64).
It was concluded that:
68.In our opinion, the injunctive relief sought on 21 October 2013 merely restated, or restated the primary effect of, FLA s 121. In the absence of "special circumstances", therefore, it was unnecessary and undesirable for the Court to grant the relief. No "special circumstances" were identified before Johnston J, and none existed. Similarly, no "special circumstances" were identified before us. It follows that his Honour's decision to dismiss the wife's application was entirely proper, and that the appeal must therefore be dismissed.
Discussion of issues and findings
In the affidavit filed on behalf of the objectors, Mr Simons, the legal practitioner, sets out his qualifications. He then sets out particulars of the role that he played in preparing the Wills of the deceased father of the wife. His evidence indicates that the last Will of the wife’s father made by Mr Simons was one signed on 30 January 2009. The wife’s father died in July 2009, aged 70 years.
In that affidavit the legal practitioner refers to the Will and several clauses of the Will, including the appointment of the wife’s brother Mr C S, as the sole executor of the Will and that he had been instructed in or about December 2011 to act for the executor in relation to the estate of the deceased father of the wife.
In that affidavit he sets out information concerning the assets of the deceased estate, including significant interest in real estate which was valued by the Valuer-General at $6.8M. He asserted that the interest of the deceased estate in real estate was worth approximately $1.422M.
The affidavit refers, in general terms, to the deceased’s interest in a large group of private companies known as “[V] Corporation”.
The affidavit also refers to bequests made in the Will to various family members. The affidavit refers to the deceased being the Managing Director of “a large group of private companies owned and controlled by the deceased, his spouse and sons”. (Paragraph 31). In the affidavit he refers to the substantial shareholding of the deceased and says in paragraph 35:
No shares held by the deceased were given to [the wife].
Of particular significance to the current proceedings is the information contained in paragraphs 38 to 43 which refer to the reference in the Will to the wife.
In paragraph 45 of the affidavit the legal practitioner states:
Based upon the likely value of the assets of the deceased at death, and allowing for bequests to other persons, the deceased estate has insufficient financial resources to pay any of the gift to [the wife] under Clause 14.4 of the Will, and the annual distribution to [the wife] under Clause 14.7.
It is maintained in the affidavit that the clauses in the Will referring to the wife in these proceedings are expressed as “mere wishes of the deceased”.
In that affidavit the legal practitioner says that there has been no application for a grant of probate of the Will of the deceased in South Australia or in any other jurisdiction. The affidavit then purports to give a reason for the failure to obtain probate and at paragraph 57 says:
While no application has been made for a grant of probate, I was instructed by [Mr C S] to make application for a limited grant of administration for the specific purpose of transmitting the estate’s interest in the five properties described in paragraph 20. Justice Gray in the Supreme Court of South Australia adjourned that application sine die with a view to facilitating the prosecution of the application under a confidentiality regime if the executor wished to do so.
The affidavit then deals with the issue in relation to the concern by the objectors about privacy and unwelcome publicity, together with issues referring to personal safety and security.
The subpoena seeks the production of a copy of the Will (and any related documents of the deceased father of the wife). It also seeks a statement of assets and liabilities of the deceased estate “and / or such documents that set out the assets and liabilities of his estate”. The subpoena continues to seek a copy of the probate of the Will and any Deeds, documents or other written material relating to variations of his Will or a Deed of Family Arrangements or Deeds of Family Arrangements concerning the estate.
The last section of the subpoena refers to “any written advice and / or documents in relation to the winding up or delay in winding up of his estate”.
It was maintained on behalf of the objectors that the only significance of the Will is the extent to which it makes provision for the wife. It is then maintained that the affidavit of the legal practitioner is sufficient to provide that information and that “accordingly there is now no legitimately forensic purpose in requiring production of the Will”.
It is then asserted at paragraph 8 of the objector’s outline of argument:
Production would not add to the admissible evidence of any question in the proceedings, and having regard to the well-founded and reasonable concerns of the objectors in relation to disclosing confidential and sensitive information concerning the family, the estate and the [V] Group … it would be oppressive to require production.
The affidavit itself clearly indicates that there are certain provisions of the Will which are relevant to determining the assets and financial resources of the wife in these proceedings. Indeed, the wife’s own Statement of Financial Circumstances refers to her possible interest in the estate as a financial resource.
Simply because a legal practitioner provided particulars of the clauses in the Will which he considers to be relevant does not overcome the obligation to produce the relevant document in its entirety if the document is available.
I do not accept the submission that the production would not add to admissible evidence on any question in the proceedings. It is clearly a document which has forensic relevance and is a document which has sufficient clear connection to the issues to be determined in this case to require its production and inspection.
The question of disclosure of confidential and sensitive information concerning the family, the estate and the V Group is not a significant factor which would overcome the need to comply with the general obligation. In particular, the law makes it clear that there is an obligation upon the parties to the proceedings, and anyone else into whose hands the documents come, not to use the documents or the information contained therein for any purpose other than the current proceedings.
Many decisions of this Court and the Rules indicate that the purpose of the obligation is to protect privacy and encourage frank disclosure in litigation.
If this indication on the law is not sufficient to overcome the concerns of the objectors about privacy the Court also has the capacity to specifically order that the parties be restrained by injunction from disclosing any of the material or information to anyone at all other than those advising the parties in relation to these proceedings.
The objection to the production and inspection of the last Will of the wife’s father and any related documents on the basis of lack of relevance or confidentiality is not established.
It is not necessary for there to be proof that there are documents in each category, rather it is appropriate for the documents to be produced. If they do not exist then the documents cannot be produced.
Connected to the disclosure and inspection of the copy of the Will is the requirement in the subpoena for the production of any statement of assets and liabilities of the estate, or such documents that set out the assets and liabilities of the estate. It is alleged on behalf of the objectors that there has been no grant of probate and therefore there has been “no statement of assets and liabilities lodged” (item 3 of the objector’s Outline of Argument). The statement of assets and liabilities requested is not specified to be one which has been lodged. The affidavit of the legal practitioner purports to set out his version of the statement of assets of the deceased estate and refers to an adjourned application for a limited grant of administration for the specific purpose of transmitting the estate’s interest in the five real estate properties described in the earlier part of the affidavit. (Paragraph 57).
It is not therefore clear from the material put before the Court that there has not been brought into existence by the legal practitioner or by the executor or someone acting on their behalf a statement of assets and liabilities of the estate or documents which set out such a statement of the assets and liabilities of the estate.
Item 3 of the subpoena is “a copy of the Probate of the said [Mr G S’s] Will”. When the objectors comply with the subpoena it will be clear that they are required to produce a grant of probate if it has been obtained. They are not required to produce a document which does not exist.
Item 4 of the subpoena refers to “any Deeds, documents or other written material relating to variations of his Will or a Deed of Family Arrangements or Deeds of Family Arrangements”. These are quite specific documents sought. The existence of such documents would have an apparent relevance to the proceedings before this Court in that it may assist in determining the assets, liabilities and financial resources of the wife. It is not necessary for the husband to produce evidence that there has been any variations or Deeds of Family Arrangements. It is appropriate for such documents to be produced pursuant to the subpoena if they exist. It is also appropriate that inspection of such documents take place, taking into account the restrictions that will prevent the publication of any such information, or the use of such information, other than for the purposes of these Family Court proceedings.
Item 5 of the subpoena is “any written advice and / or documents in relation to the winding up or delay in winding up of his Estate”. The objection to this material is on the basis that again no foundation for the relevance has been made. It is also maintained that this is a “fishing” exercise and therefore objectionable. It is also argued that the breadth is too vast and therefore presumably oppressive. The objection is also on the basis that the documents “may plainly capture documents immune from production by virtue of legal professional privilege”.
Documents which are the subject of legal professional privilege should be disclosed and the appropriate claim made to seek exception for production on the ground of legal professional privilege. This ground does not prevent the documents being identified, rather it prevents them having to be provided for inspection if the legal professional privilege is appropriately claimed.
Counsel for the husband specifically informed the Court that it was acknowledged that the protection of legal professional privilege existed and that it had not been the husband’s intention to seek production of documents which were covered by legal professional privilege.
The deceased died in July 2009 and by early 2014 no application for probate had been made for an estate which involves substantial direct holdings in real estate and significant investments in registered companies and businesses.
There may also be documents to be produced in relation to the shares, the shareholding, directorships and real estate interest which may have been created for the purpose of winding up the estate of the deceased, which would clearly fall into the category of “documents relating to the winding up of the estate”.
Taking into account the affidavit material of the legal practitioner and the significant relevance of the possible interest of the wife in the estate of her late father, I do not find that the subpoenas are an exercise in “fishing” or that the documents lack relevance.
Whilst the phrasing of the item in category 5 is wide in that it refers to “documents in relation to the winding up or delay in winding up the Estate”. I do not consider that the breadth of this is so wide as to make the request oppressive. This is particularly so bearing in mind the potential size of the estate and the considerable delay since July 2009 in obtaining probate or the lack of information concerning the winding up of this potentially large estate.
Section 121 of the Act provides specific legislation indicating that a person who publishes or disseminates to the public or a section of the public an account of proceedings or any part of the proceedings is guilty of an offence which is punishable upon conviction by imprisonment for a period not exceeding one year.
In the Full Court decision of Sitwell & Sitwell (Supra) the Full Court discussed the capacity of the Court to grant an injunction in terms similar to s 121 of the Act. It was indicated that such an injunction should not merely restate the effect of s 121 but that each case should clearly be considered on its merits. Reference was made to the need to provide special circumstances before making an injunction under s 114 of the Act.
I am satisfied in this case that the injunction to be granted is not merely a restatement of s 121 as it is not limited to information being provided to the media or a section of the public, but is an injunction which in its wider terms will protect the privacy of the wife’s family.
Taking into account all of the above factors therefore I am satisfied that it is appropriate for the subpoenas to be enforced and the objections by the objectors to be dismissed. The Court requires compliance with each of the subpoenas. The Court will also order that each of the parties and their legal advisers are restrained from providing any information or copies of any documents obtained from the subpoenaed documents to any person other than a legal adviser or a person assisting the legal advisers in relation to these proceedings.
I am satisfied that the injunction will overcome any difficulties which they describe as their “reasonable concerns” in relation to the disclosing of confidential and sensitive information and is proper in these circumstances.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 17 June 2014.
Associate:
Date: 17 June 2014
7
12
2