Hann v Hann - [2025] NSWSC 80

Supreme Court

New South Wales

Medium Neutral Citation: Hann v Hann [2025] NSWSC 80
Hearing dates: 14 February 2025
Date of orders: 14 February 2025
Decision date: 14 February 2025
Jurisdiction: Equity - Applications List
Before: Kunc J
Decision:
Subpoenas set aside and orders made for destruction of accessed documents

Catchwords:
CIVIL PROCEDURE – subpoena to produce documents or things – abuse of process – precipitous issue of subpoenas – subpoenas issued before pleadings filed and not justified by issues in interlocutory dispute

Cases Cited:
Neil Street Co Pty Ltd v Ibrahim [2024] NSWSC 1382
Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1

Category: Procedural rulings
Parties: Steven Frederick Hann (Plaintiff)
Paul Robert Hann (Defendant)
Representation:
Counsel: A Crossland (Plaintiff)
E Ball (Defendant)
Solicitors: Watson Law (Plaintiff)
Collins Clare Solicitors (Defendant)

File Number(s): 2023/263690
Publication restriction: None

EX TEMPORE JUDGMENT (REVISED)

Summary

By further amended notice of motion dated 5 August 2023, the defendants seek to set aside two subpoenas issued at the request of the plaintiff to IMB Bank and Commonwealth Bank of Australia.
The parties are all the children of the late John Hann. The plaintiff (to whom I shall refer, without disrespect, as Steven) and the first defendant (to whom I shall refer, again without disrespect, as Paul) are the main protagonists, and all three defendants are executors of the estate of the late John Hann.
The underlying dispute is that Steven alleges that the defendants have, without his consent, sold or dealt with cattle said to have been jointly owned by Steven and Paul. The subpoenas were issued on 19 October 2023, while the parties were locked in intense interlocutory disputes. Under the Court’s rules, leave was not required for the issue of the subpoenas. The subpoenas sought copies of all bank statements in the name of Paul or John (in either their own name or with any other person) from 12 August 2021 to the date of the subpoenas. The essential question is whether, having regard to the state of the litigation at that time, there was a proper forensic purpose for the issue of the subpoenas.
For the reasons which follow, the Court has determined that the issue of the subpoenas lacked a proper forensic purpose and they will be set aside. The Court acknowledges the assistance it has received from the extensive written and oral submissions of Mr E Ball of Counsel for the defendant applicants and Mr A Crossland of Counsel for the plaintiff respondent.

Chronology

The proceedings were commenced by the filing of a summons on 18 August 2023 before Robb J sitting as Duty Judge. His Honour made ex parte orders. The matter returned to Court on 22 August 2023. On that occasion, his Honour made orders by consent providing for a regime which included the provision of information by the defendants to Steven, but was primarily directed towards the identification and sale of the cattle.
It is important for the purposes of this decision…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWSC 80
Decision Date: 14 February 2025

CaseChat Overview and Summary

In this matter, the respondent sought to compel the applicant to produce documents, which she had refused to do. The dispute arose in the context of proceedings for the dissolution of a marriage. The case was heard in the Family Court of Australia. The applicant argued that the subpoenas were issued in an abusive manner and without justification, particularly as they were issued before the pleadings had been filed. The respondent contended that the subpoenas were issued in good faith and that they were necessary to ascertain the existence of documents that might be relevant to the proceedings.

The court was required to consider whether the subpoenas had been issued in a manner that amounted to an abuse of process, and whether they were justified given the stage of the proceedings at which they were issued. The court also needed to determine whether the subpoenas had been issued precipitously, that is, without proper consideration of the issues that had arisen at that stage of the proceedings. The court had to weigh the need for the documents against the potential for prejudice to the applicant if the subpoenas were enforced.

The court found that the subpoenas had been issued in an abusive manner, and that they were not justified at the stage of the proceedings at which they were issued. The court emphasised that subpoenas should not be used as a discovery tool, and that they should only be issued where there is a clear and urgent need for the documents. The court also noted that the subpoenas had been issued before the pleadings had been filed, and that this was not justified by any interlocutory dispute that had arisen. The court held that the subpoenas should be set aside, and that the respondent was not entitled to the production of the documents. The court also noted that the respondent's conduct in issuing the subpoenas had been vexatious and oppressive, and that costs should be awarded against the respondent.

The court ordered that the subpoenas be set aside, and that the respondent pay the applicant's costs of the application. The court also ordered that the respondent pay the costs of the respondent's legal representatives on an indemnity basis.

Orders