Hatton v Attorney-General of Commonwealth of Australia & Ors

[2000] FamCA 892

[2000] FamCA 892

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY  Appeal No. ALE 15 of 1999
  File No.   SY10224 of 1997
IN THE MATTER OF:

MR  HATTON

Applicant/Appellant Husband

- and -

THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

- and -

COMMONWEALTH BANK OF AUSTRALIA

Second Respondent

- and -

COMMONWEALTH DEVELOPMENT BANK OF AUSTRALIA

Third Respondent

REASONS FOR JUDGMENT OF THE FULL COURT

BEFORE:                   Finn, Kay and Dessau JJ.
HEARD:  16 and 17 November 1999
JUDGMENT:            2 August 2000

APPEARANCES:

Mr Brereton of Senior Counsel (instructed by Stewart Levitt & Company, Suite 25, 20 Bay Street, DOUBLE BAY   NSW   2028) appeared on behalf of the Applicant/Appellant Husband.

Ms Mullins of Senior Counsel (instructed by the Australian Government Solicitor, Level 23, 133 Castlereagh Street, SYDNEY   NSW   2000) appeared on behalf of the First Respondent.

Mr Broun of Queen’s Counsel (instructed by LE Taylor, Chief Solicitor and General Counsel, Commonwealth Bank Group, 10^th Floor, Bank House, 309 George Street, SYDNEY   NSW   2000) appeared on behalf of the Second and Third Respondents.

APPEAL SUMMARY

MATTER:HATTON v ATTORNEY-GENERAL OF COMMONWEALTH OF AUSTRALIA, COMMONWEALTH BANK OF AUSTRALIA, AND COMMONWEALTH DEVELOPMENT BANK OF AUSTRALIA

NUMBER:  ALE 15 of 1999 (SY 10224 of 1997)
CORAM:  Finn, Kay and Dessau JJ.
DATE OF HEARING:         16 and 17 November 1999
DATE OF JUDGMENT:      2 August 2000

CATCHWORDS:  PRACTICE AND PROCEDURE - Subpoena - setting aside National Employers’ Mutual General Association v Waind and Hill [1978] 1 NSWLR 372 - Family Law Rules O.28

Epstein (1993) FLC 92-384; White and Tulloch v White (1995) FLC 92-640; Relationships Australia v Pasternak (1996) FLC 92-699; Botany Bay Instrumentation & Control Pty Ltd and Another v Stewart and Another [1984] 3 NSWLR 98; Purnell Bros Pty Ltd v Transport Engineers Pty Ltd (1984) 73 FLR 160; Trade Practices Commission v Arnotts (1989) 88 ALR 90; Australian Competition and Consumer Commission v Shell Co of Australia (1999) 161 ALR 686; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) FCR 1599; and Santos Ltd and Others v Pipelines Authority of SA (1996) 66 SASR 38 considered

This was an application by the husband for leave to appeal orders made by Rose J. on 11 August 1999, setting aside wholly or in part, three subpoenae to produce documents issued on 28 June 1999, at the request of the solicitors acting for the husband, respectively to the Attorney-General of the Commonwealth of Australia, the Commonwealth Bank of Australia and the Commonwealth Development Bank of Australia.  The three subpoenae in question were issued in the course of property settlement proceedings between the husband and the wife.

Before Rose J., the Attorney-General applied successfully to have the subpoena set aside on the ground of relevance, and the banks applied successfully to have the subpoenae set aside on the grounds of abuse of process and oppression (constituted by lack of relevance).

The husband sought leave to appeal on the grounds essentially that the trial Judge erred in principle in applying a test of “apparent relevance”, and in holding that in this Court, the relevance of the documents called for by the subpoenae must be apparent from the affidavit material filed in the substantive proceedings.

Held, in dismissing the application for leave to appeal and ordering the husband to pay the respondents’ costs:

• That while the power to issue subpoenae to produce documents is expressly provided for in the Family Law Rules (O.28 r.1), there is no express provision (as there is the Federal Court Rules) for the setting aside of a subpoena.  Nevertheless, the existence of a power in this Court to set aside subpoenae seems to have long been assumed or accepted by this Court: Sharpe and Dalton (1990) FLC 92-167; Epstein (1993) FLC 92-384; White and Tulloch v White (1995) FLC 92-640; Re Z (1996) FLC 92-694 at 83,240; and Relationships Australia v Pasternak (1996) FLC 92-699).

• The present state of authority is such that the trial Judge could not be said to have erred in principle in holding that lack of apparent relevance would be a sufficient ground in itself to set aside a subpoena: National Employers’ Mutual General Association v Waind and Hill [1978] 1 NSWLR 372, Botany Bay Instrumentation & Control Pty Ltd and Another v Stewart and Another [1984] 3 NSWLR 98, Purnell Bros Pty Ltd v Transport Engineers Pty Ltd (1984) 73 FLR 160, Trade Practices Commission v Arnotts (1989) 88 ALR 90, Australian Competition and Consumer Commission v Shell Co of Australia (1999) 161 ALR 686, Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) FCR 1599 and Santos Ltd and Others v Pipelines Authority of SA (1996) 66 SASR 38 considered.

• Given that there are at the present time no pleadings in this Court, the only way in which apparent relevance of the subpoenaed material to the main property settlement proceedings could be established was by reference to the affidavit material filed in the proceedings.  The trial Judge was not in error in requiring the husband, at whose request the subpoenae had been issued, to establish that the documents sought by the subpoenae were relevant to the main proceedings.

REPORTABLE

INTRODUCTION

1. This is an application by Mr Hatton (to whom it is convenient to refer as “the husband”) for leave to appeal orders made by Rose J. on 11 August 1999, setting aside wholly or in part, three subpoenae issued on 28 June 1999, at the request of the solicitors acting for the husband, respectively to:

• the Attorney-General of the Commonwealth of Australia;

• the Commonwealth Bank of Australia; and

• the Commonwealth Development Bank of Australia.

1. The Attorney-General and the two banks are the respondents to the application for leave to appeal and it will be convenient to refer to these parties as “the Attorney-General”, “the Commonwealth Bank” and “the Development Bank” respectively.

1. Before us, and in accordance with directions of Ellis J. made on 6 October 1999, the matter proceeded on the basis not only of argument in support of, and against, the application for leave to appeal, but also in support of, and in opposition to, the appeal.  In the event that the appeal was allowed, the husband sought the setting aside of the orders of Rose J. of 11 August 1999.

FACTUAL BACKGROUND

1. The three subpoenae in question were issued in the course of proceedings in this Court for property settlement between the husband and Mrs Hatton (“the wife”), which were initiated by the wife.

1. The husband and the wife formerly owned a property at Clovelly, which was subject to a mortgage to the Commonwealth Bank.  After the parties’ separation (in 1983), in circumstances which are less than clear, $600,000 was borrowed on the security of the Clovelly mortgage, and allegedly used to meet debts or obligations of Brown & Hatton Pty Ltd (“B & H”), which was a company in which during the marriage, at least at some stage, the husband and wife had an interest.  The mortgage was paid out on the subsequent sale of Clovelly.

1. The principal asset now available for division between the parties is the remaining proceeds of sale of Clovelly, now amounting to about $700,000.

1. The wife alleges that the $600,000 was taken by the husband as an investment for his own purposes, or if not, as a result of recklessness or negligence on his part, and should be treated as a preliminary distribution to him, so that she should be entitled to practically the whole of the remaining $700,000.

1. The husband contends that the $600,000 was obtained, without his knowledge or consent, by one Mr Constantinidis, and was applied by Constantinidis (1) to satisfy obligations of B & H for which the parties had incurred responsibility during the marriage, or (2) to create an equivalent asset in B & H, or (3) to unknown purposes of Constantinidis.  At the least, the husband contends that this sum was not taken for his sole purposes nor as a result of his negligence.

1. Various attempts to obtain an explanation and documents from Mr Constantinidis have failed, but one of the explanations he has offered (in an affidavit apparently prepared on his instructions by the husband’s solicitor but which Mr Constantinidis subsequently refused to swear) is that the $600,000 was taken by him as reimbursement of an amount paid by him to procure from the Commonwealth Bank a release of himself, the parties and a Mr and Mrs Brown (who were originally the other proprietors of B & H).

1. We have relied for the above factual background on an outline of facts which was contained in the written summary of argument provided to us by Counsel for the husband, and which is stated to be a summary of the facts contained in the affidavit (sworn 15 September 1999) of the solicitor for the husband in support of this application for leave to appeal.

1. The affidavit in support of the application for leave to appeal has annexed to it (as Annexure A) the affidavit (referred to in paragraph 9 above) which was prepared by the husband’s solicitor allegedly on the instructions of Mr Constantinidis but which he subsequently refused to swear.

1. Also annexed (as Annexure C) to the solicitor’s affidavit in support of the application for leave to appeal is an earlier affidavit sworn by the solicitor on 27 July 1999.  In paragraph 2 he records a conversation he had with Mr Constantinidis on 10 June 1999:

   “2.On that day, a gentleman who I know to be Achilles Constantinidis had a conversation with me to the following effect:

   AC“I will not swear this affidavit” (referring to the unsworn affidavit by him filed in this Honourable Court on 10 June 1999).

   AM“I thought it was prepared on your instruction.”

   AC“It was, but it needs more detail.  I will meet with Stewart and give more details so that it reflects the true position.”

   AM“Could you let us have all the relevant documents?”

   AC“They are with the Attorney General.  He requested them following the 60 Minute programme.  I gave them all to him.  He should let you see them.”.”

1. On 28 June 1999, the solicitor for the husband issued subpoenae to the Attorney-General, the Commonwealth Bank and the Development Bank, all requiring production of various documents on 9 July 1999.

THE PROCEEDINGS BEFORE ROSE J. ON 11 AUGUST 1999

1. It appears that the property settlement proceedings between the husband and the wife had been listed for directions before Rose J. on 11 August 1999.  It also appears that prior to that date a Registrar of the Court had notice that the Attorney-General and the two banks were seeking to have the various subpoenae issued to them on 28 June 1999 set aside.  The Registrar also listed those matters before Rose J. on 11 August.

1. At the outset of the hearing on that day, his Honour asked Counsel for the Attorney-General, Ms Mullins, what issues she was raising in relation to the application to set aside the subpoena.  Ms Mullins responded (at Transcript 11 August 1999 p.7 lines 13-24):

   “MS MULLINS:       Primarily relevance, your Honour.  It will be apparent from the documents – they are available here for your Honour to look at – they are not relevant to any issue in the proceedings and the Attorney seeks to set aside the subpoena on that basis.  There are subsidiary issues of public interest immunity and abuse of process but I don’t need to go to those, if I can convince your Honour in relation to relevance.  I mean, the principles are well and truly settled.  If documents are not relevant the Court won’t allow parties to inspect them.  If the Court is not going to allow parties to inspect them, there is no point in having them in the Court and, on that basis, the Attorney seeks to set aside the subpoena.  Your Honour, I have some material to read – should I go through that now?”

1. The principal affidavit relied on by Ms Mullins was an affidavit of a Nicholas Grono (Senior Adviser to the Attorney-General) filed on 27 July 1999.  We will refer to the contents of that affidavit later.

1. Mr Lloyd, appearing for both the Commonwealth Bank and the Development Bank, then informed his Honour of the basis of his clients’ objection - having earlier explained (at Transcript p.7 lines 6-8) that both banks could be treated as one (at Transcript 11 August 1999 pp.9-10):

   “MR LLOYD:           Your Honour, the basis of the objection by the bank is twofold basically.  One is that it is an abuse of process and that falls into a couple of categories, the first of which is having regard to the nature of the proceedings and the directions that you made on the last occasion as to the future conduct of the matter and the reasons advanced of the profit by the Attorney representing the husband on that occasion who has now requested the Court to issue the subpoena.  The reason - and secondly to that abuse argument is that the reason that was proffered - - -

   HIS HONOUR:         So, for the purpose of abuse you say: one is the ground of relevance, right?

   MR LLOYD:  Yes.

   HIS HONOUR:         The first ground – if that is unsuccessful, what other grounds?

   MR LLOYD:  It is clearly an oppressive document – it’s a fishing expedition undertaken for the production of documents at large - - -

   HIS HONOUR:         Yes.”

1. Mr Lloyd then outlined the affidavits on which he relied, as also did Mr McPherson who appeared for the husband.

1. Then having taken a short adjournment to read the affidavit material relied on by the various parties, and having heard submissions on behalf of the Attorney-General, the banks and the husband (the further attendance of the wife’s counsel had earlier been excused), his Honour ordered:

   1.        that the subpoena to the Attorney-General should be set aside;

   2.that the subpoena to the Commonwealth Bank should be set aside with the exception of paragraph 4; and

   3.that the subpoena to the Development Bank should be set aside with the exception of paragraph 1.

1. These are the orders which the husband now seeks to appeal.  It will be convenient to deal first with the subpoena to the Attorney-General.

THE SUBPOENA TO THE ATTORNEY-GENERAL

1. The subpoena to the Attorney-General required production of:

   “All documents or copy documents provided by the Commonwealth Bank of Australia, the Commonwealth Development Bank of Australia, Mr Paul Keating, Mr Achilles Constantinidis and Ms Maria Constantinidis and Mr John Brown to the Attorney General:

   1.   following a request by the Attorney General to them which request resulted from public interest in a Channel 9 TV program called “60 minutes” in which one or more of these persons were interviewed

   2.   which relate to any assets held by Brown & Hatton Pty Ltd, or Brown & Hatton Group Pty Ltd, or relating to a property known as Parkville Pig Stud near Scone, New South Wales, or without limitation

   3.   which relate to any companies or persons described in the attached deed dated 27 April 1996 between the Commonwealth Bank of Australia, Cliros Pty Ltd and Others.”

1. As will be seen from our earlier quotation (at paragraph 15) of the opening submissions to his Honour by Counsel for the Attorney-General, the only ground actually argued by Counsel in support of the application to have the subpoena set aside, was relevance.

1. It is clear from the following passage from his Honour’s reasons for judgment that the test which he applied in determining the Attorney-General’s application for the subpoena to be set aside was that of “apparent relevance” (underlining added):

   “At the forefront of the submissions on behalf of the Attorney-General was the submission that a review of the applications relating to property settlement and the affidavit material relied on by and for the husband for the purpose of meeting the application to set aside the subpoenae did not address or provide any issues of fact which made the terms of the subpoenae apparently relevant.

   It is fundamental to the consideration of the applications before me that a Court, particularly a Court in which pleadings do not apply, should be able to ascertain apparent relevance not merely from submissions, but from the actual documents filed in Court which give rise to the relevance relied upon.  To that extent I was referred by Mr McPherson [the solicitor for the husband] to a number of authorities and in particular The Trade Practices Commission and CSR Limited, reported in 1989 ATPR, page 50.  It is now necessary to consider what in fact are the documents called for in the subpoena and then consider the material upon which the solicitor for the husband relies in order to see whether the test of apparent relevance has been met.

   The subpoena to the Attorney-General seeks documents, which are limited only by the source of those documents, or otherwise to particular matters relevant to named companies or persons.  The first paragraph of the subpoena calls for “all documents or copy documents” provided by a particular institution or persons referred to in paragraph 1 following a request by the Attorney-General to them resulting from a specified television program.

   I have been referred by Mr McPherson to two affidavits of himself sworn on 27 and 28 July 1999 and paragraphs 36, 37, 45, 46, 95 of the affidavit of Mr Hatton sworn 21 June 1999 and then subsequently paragraphs 32, 48, 67 to 95 of that affidavit, as being material which illustrates the factual and legal issues giving rise to the relevance of the material sought.  In my view, none of that material establishes any apparent relevance that justify the documents called for in paragraph 1 of the subpoena.

   Moving then to paragraph 2 – the same unlimited documents are called for relating to “any assets held by Brown and Hatton Pty Limited, Brown and Hatton Pty Limited, or relating to a property near Scone, New South Wales” or otherwise without limitation.  Again, one needs to look at the material relied upon on behalf of the husband to see whether there is any apparent relevance in requiring documents in respect of unspecified and unlimited assets held at some unknown period of time by one or more of the companies or, in relation to particular property to which I have made reference.  Once again, I fail to see any material in the nominated paragraphs of the husband’s Affidavit of 21 June 1999 or the Affidavit of Mr McPherson which make such a wide collection of documents for any assets held by those companies at any time in the past, as having an apparent relevance to any issue that has been raised in the material relied upon.
   Paragraph 3 of the subpoena also seeks “all documents or copy documents” provided by the banks and persons referred to at the commencement of the subpoena which relate to “any companies or persons described in Deed dated 27 April 1996 between the Commonwealth Bank of Australia, Cliros Pty Limited and others”.  The copy of that Deed is annexed to the subpoena and does identify a number of companies as well as the Commonwealth Bank of Australia and a number of persons who are parties to the proceedings between Mr and Mrs Hatton.  The parties are specifically referred to, that is Mr and Mrs Hatton, in Schedule 2 to the Deed in terms of a mortgage apparently granted by them, as well as the guarantee provided by them.  I was informed during the course of submissions by Mr McPherson that that mortgage has been discharged and inferentially a release from the guarantee had occurred.  Although he did not say that specifically, it seemed to me a normal consequence of a mortgage having been discharged.  Certainly, it was not formally put that Mr Ian Aldiss has had himself a direct or continued liability pursuant to that guarantee.  Again it was necessary to traverse the material which I previously identified in order to seek to ascertain if possible, the apparent relevance of the documents put forward in terms of issues raised on the husband’s account.  In my view none of the material relied upon raises any issue for determination in the substantive hearing dealing with all or any of the companies or the Banks or the individuals in the Deed dated 27 April 1996.

   It follows from my findings, to which I have recently made reference that I conclude that the subpoena to the Attorney should be set aside on the ground that the documents called for are irrelevant to all or any of the issues raised by the party who caused the subpoena to be issued.  Consequently, I propose to make an order setting aside the subpoena.”

1. Before us, the husband’s challenge to his Honour’s order setting aside the subpoena to the Attorney-General, was essentially that his Honour had erred in principle in applying a test of “apparent relevance” in determining to make that order.  In his written outline of argument, Counsel for the husband submitted that relevance is not, per se, a ground upon which a subpoena will be set aside, although it may be a basis for refusing access to (or inspection of) documents.  Rather, it was submitted that the basis for setting aside a subpoena is that the subpoena is an abuse of process, which it will be if, inter alia, (1) it has not been issued bona fide for the purpose of obtaining relevant evidence and the witness is in fact unable to give relevant evidence, and (2) the subpoena is oppressive.

1. While Counsel for the husband was prepared to concede that a subpoena may be set aside if the witness can demonstrate that the process cannot operate to compel the production of any relevant and admissible evidence, he submitted that the test of relevance in this regard is “very liberal”: if an issue may arise to which the documents may relate, then the subpoena will be valid; it is sufficient if it is “on the cards” that the subpoena will produce documents which may assist the case.

1. In his oral submissions, Counsel for the husband sought to demonstrate the correctness of the propositions contained in his written summary by reference to a number of authorities, in particular the decision of the New South Wales Court of Appeal in National Employers’ Mutual General Association v Waind and Hill [1978] 1 NSWLR 372 where at 381, Moffitt P. discussed the three steps or stages involved in the subpoena process (being production, inspection and admission into evidence). Counsel endeavoured to convince us that for the purpose of the tests to be applied at these various stages, it was necessary to distinguish “potential relevance” and “apparent relevance”, and that at the first stage of the process, which is concerned with abuse of process or oppression, the issue is one of “potential relevance” only. For further support in this regard, Counsel relied on the decisions of single judges of the New South Wales Supreme Court in Re Marra Developments (No 2) (1979) 4 ACLR 153, Botany Bay Instrumentation & Control Pty Ltd and Another v Stewart and Another [1984] 3 NSWLR 98 and Purnell Bros Pty Ltd v Transport Engineers Pty Ltd (1984) 73 FLR 160.

1. However, Counsel for the husband was also prepared to concede that at least in the case of Trade Practices Commission v Arnotts Limited and Others (1989) 88 ALR 90, Beaumont J. had used the concept of “apparent relevance” in the context of an application to set aside a subpoena. But, as we understood Counsel’s submissions, he then sought to demonstrate (by reference to Beaumont J.’s later conclusion that certain of the documents called for by the subpoena in question in that case “could possible throw light on the issues in the main case” and that accordingly “adjectival relevance is established”) that Beaumont J. was really referring to “potential” as opposed to “apparent” relevance.

1. It was further submitted by Counsel for the husband that his Honour was in error in holding that in this Court (which does not have pleadings), the relevance of the documents called for by the subpoena must be apparent from the affidavit material (and we assume here that Counsel was referring to the affidavit material filed in the main proceedings) and the terms of the subpoena.

1. The basis of this submission, at least as we apprehend it, was that it was for the Attorney-General to show that the documents caught by the subpoena could not possibly be relevant.  However, it was also submitted that, to the contrary, his Honour should have been satisfied as to “potential relevance” on the basis:

• first of the affidavit of the husband’s solicitor (sworn 27 July 1999) where the solicitor deposed to a conversation with Mr Constantinidis in which “the relevant documents”, having been asked for, were said to be with the Attorney-General; and

• secondly of the affidavit of the Attorney-General’s adviser, Mr Grono, in which he stated that he had possession, on behalf of the Attorney-General, of five documents which fell within the scope of the subpoena and that those five documents contained “no obvious reference to any matter relating to the issue [which had been identified by the husband’s solicitor in a letter to the Australian Government Solicitor which explained the relevance of the documents sought under the subpoena] with the exception of paragraphs 15 and 16 of (a) statement by Mr Constantinidis dated 26 May 1999”.

1. Thus, Counsel submitted, there was before his Honour “an overt admission of actual, or at least potential relevance” of one of those documents.

1. In response, Counsel for the Attorney-General submitted that while Waind and Hill provided “the starting point”, the law had developed further and that it was “accepted and settled law” that relevance is now a separate and distinct ground for setting aside a subpoena and not just a species of oppression or abuse of process.  In support of this contention, Counsel relied on the decision of Treyvaud J. of this Court in Epstein and Epstein (1993) FLC 92-384, and also on two relatively recent decisions of single judges of the Federal Court, being Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) FCR 1599 at 7-8, and Australian Competition and Consumer Commission v Shell Co of Australia (1999) 161 ALR 686.

1. It was further submitted on behalf of the Attorney-General that it is the party seeking to uphold the issue of a subpoena seeking documents who must prove that the terms of the subpoena have an apparent relevance to the issues in the main proceedings and in support of this submission, the decision of the South Australian Supreme Court in Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38 (at 52) was relied on.

1. As to the apparent concession of Mr Grono that the Attorney-General held a document which came within the scope of the subpoena, and which included two paragraphs which contained a reference to the issue identified by the husband’s solicitor, it was submitted on behalf of the Attorney-General that this circumstance did not make the terms of the subpoena relate to the issue in the proceedings.

The setting aside of subpoenae by the Family Court of Australia

1. In determining whether Rose J. was in error in setting aside the subpoena to the Attorney-General, it should be observed at the outset that while the power to issue subpoenae to produce documents is expressly provided for in the Family Law Rules (O.28 r.1), as it is in the Federal Court Rules (O.27 r.2), unlike in the Federal Court Rules (O.27 r.9), there is no express provision in the Family Law Rules for the setting aside of a subpoena.  (In relation generally to the scope of the power of the Federal Court in relation to the issue and setting aside of subpoenae, see the decision of French J. in Trade Practices Commission v CSR Limited (1989) ATPR 40-970).

1. Nevertheless, the existence of a power in this Court to set aside subpoenae seems to have long been assumed or accepted by this Court (see in this regard: Sharpe and Dalton (1990) FLC 92-167; Epstein (1993) FLC 92-384; White and Tulloch v White (1995) FLC 92-640; Re Z (1996) FLC 92-694 at 83,240; and Relationships Australia v Pasternak (1996) FLC 92-699). However, the principles which should govern the exercise of the power have not, it would seem, to date been the subject of any extensive examination.

1. We mention at this point that no issue was raised before us regarding the absence of such an express power in the Family Law Rules to set aside a subpoena. 

1. Before considering such earlier decisions of this Court as do exist concerning the exercise of the power to set aside subpoenae, reference needs to be made to the decision of the New South Wales Court of Appeal in Waind and Hill (supra), which was accepted by all Counsel before us as at least the seminal authority in the law in this country in relation to the setting aside of subpoenae.

1. In Waind and Hill, Moffitt P. (with whom Hutley and Glass JJA agreed) explained that there are three steps in the procedure of having a third party bring documents to court and in their use thereafter (at 381):

   “As Jordan C.J. pointed out in Small’s case ((1938) 38 S.R. (N.S.W.) 564, at p. 574; 55 W.N. 215) and, as appears in Burchard’s case ([1891] 2 QB, 241, at pp. 247, 248) there are at least two steps in the procedure of having a third party bring documents to court, and in their use thereafter. Indeed, on a correct view, there are three steps. The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross‑examination or otherwise. In these three steps the stranger and the parties have different rights and the function of the judge differs.”

1. In relation to the first step of production and/or objection to production, which is the step with which we are concerned in the present case, Moffitt P. went on to say (at 381-382) (underlining added):

   “Upon the first step the person to whom the subpoena is addressed may seek to, and have, the subpoena set aside on the ground that it was improperly issued and an abuse of the power to compel the production of documents in any one of a number of ways. Such a case is where the subpoena is used for the purpose of discovery. The essential feature of discovery in this connection, as appears from Burchard’s case (…) and Small’s case (…) is that the person to whom the subpoena is addressed will have to make a judgment as to which of his documents relate to issues between the parties. It is oppressive to place upon a stranger the obligation to form a judgment as to what is relevant to the issue joined in proceeding, to which he is not a party. Hence it is an abuse of the use of subpoena to impose this obligation.  It follows that it is an abuse to use any subpoena, i.e. even to a party to obtain discovery.  This was the reasoning in Small’s case (…).  Of course, discovery as such is otherwise available to a party.  It follows that a subpoena can only properly be used for the production of documents described in particular or general terms which does not involve the making of such a judgment.  It does not follow, however, that because the party who issues a subpoena is unaware of the precise description of a particular document, or whether a particular document or documents is in the possession of the witness, or even whether it exists, or is unaware of its contents, that the subpoena, or even a subpoena in general terms, amounts to the use of the subpoena for the purpose of “discovery”.  To state it does involve a misconception of the different functions of discovery and of a subpoena for production.  Of course, it may be that the terms of a subpoena are so wide that it is oppressive, but this is not because it is used for “discovery” in the sense used in Small’s case (…) and Burchard’s case (…), but because it imposes an onerous task on a stranger to collect and produce documents many of which can have no relevance to the litigation. To require the branch of a bank to produce all cheques received by it in a particular year in order to find, if it exists, a cheque of the opponent in a false name would be oppressive, whereas, to require a hospital to produce its file in respect of the medical treatment of the opposing party would not. It is a misuse of terms to say the person who inspects the latter is using it for the purposes of discovery, because he is unaware of the contents of the documents or some of them. It is not in point to seek to define the excessive use of the subpoena. The documents in this case are not such, and the witness itself does not so claim.

   The issue of a subpoena may involve an abuse of the power in other ways and, as stated in Small’s case (…) objection to production to the court may be on other grounds.  Thus, it would be an improper use of the subpoena if it were not sought for the purpose of the litigation, but for some spurious purpose, such as to inspect the documents in connection with other proceedings, or for some private purpose, or in collusive proceedings to give them publicity. A witness might argue the documents must be sought for some undefined spurious reason, as they have no conceivable relation to the proceedings. The court would jealously consider any of such submissions having regard to the invasion of the private rights of the stranger occasioned by the operation of the subpoena.”

1. Moffitt P. then went on to discuss at length the second step, being the granting of permission by the judge to inspect the documents – this being the step which was in issue in Waind and Hill. Notwithstanding the length of Moffitt P.’s discussion of the second step (which is not the issue before us), we will nevertheless quote his discussion in full because of the reliance which has been placed on certain statements in that discussion in later decisions, including decisions of this Court (at 383-386) (underlining added):

   “The critical question for present purposes, however, arises in relation to this second step, as to the exercise of the power of the judge to permit inspection. Does he have a judicial discretion to permit the use of the documents in any such way as he considers will aid a proper decision of the issues between the parties, by facilitating the elucidation of the truth in respect of relevant facts, or is his power restricted, so the documents can only be used in a more limited way, so access is given to them only to enable their tender in evidence or in some of the other limited ways submitted? If the latter view is the correct one, must the document be admissible without more? Are relevant documents, which could be received in evidence by consent, to be kept from the parties and the court?

   Is a document which could eventually be received into evidence pursuant to the Evidence Act, 1898, s. 54 be withheld? Could it not be seen to enable the preliminary questions to be put which might lead to it being admitted under this section? Would there be withheld a relevant document which, however, is not admissible except by consent, or which is such that it could be legitimately put in the hand of a witness in the course of cross­examination? If, however, it is available for this purpose, is the cross­examiner to do this without being permitted first, or ever, to see the document? If these uses of documents are directly or indirectly excluded when the documents come to court by subpoena, then such subpoena serves little purpose. If the uses in question only are to be permitted, then a code of procedures not detailed in the authorities would have to be laid down.

   The question really is what is the nature of the power exercised by the judge, when he has in his control documents received pursuant to a valid subpoena. The power is quite independent of, and quite different from, those in relation to discovery and inspection upon discovery. The subpoena duces tecum. has a quite different history from discovery: Amey v. Long (…); Summers v. Moseley (…). Bayley B. (…) put the power in relation to a subpoena duces tecum in its simplest form when he said: "Has not the king for the benefit of the subject a power to require a third party to do that which is essentially requisite for the purposes of justice.  The course of justice would be most defective if there were not such a power inherent in the crown as the source of justice."  It is true that, in the exercise of the power in relation to the subpoena, the invasion of the rights of a third party have been jealously guarded.  It is accepted that the documents should not go beyond the judge against objection of the owner, unless there is valid reason to do so.  It is clear that it can only be legitimate to do so, so far as it is necessary in the proper conduct of the litigation.  It is difficult to see why to do that which is "requisite for the purpose of justice" should be restricted by some arbitrary limit.  Of course, the concept of what is requisite for the purpose of justice, and how the compromise between the requirements of justice between litigants and the rights of a stranger should be met, may change and, indeed, be different now from the concepts of last century, just as concepts as to what is appropriate between parties has changed in favour of fuller disclosure of relevant matters.

   If a subpoena for production is properly issued and not set aside, and, if there is ruled to be no valid objection to the production of the documents to the court, then the documents are in the control of the judge, who is invested with jurisdiction to take all steps necessary for the proper trial of the issues before him, subject to the due observance of any relevant rules and procedures of the court.  So far as factual matters are concerned, the proper conduct of the litigation can only be that which fairly leads to the introduction of all such evidence as is material to the issues to be tried, and the testing of that evidence by the accepted procedures of the court.  The only legitimate purpose of requiring the production, and permitting the inspection, of a stranger's documents can be to add, in the end, to the relevant evidence in the case.  Small's case (…) and Burchard's case (…) did not directly deal with the present question.  Jordan C.J. quoted (…) as his authority the passage in Burchard's case (…) earlier quoted by me, but what he said went far beyond it and, in bold but imprecise outline, referred to the essential ingredients of the power of the judge.  Contrary to the very passage in Burchard's case (…) cited by him, he acknowledged … the power of the judge to hand the documents to a party, and for a party to inspect them merely "with a view" to tendering them.  He accepted there was a discretion in the judge to permit or refuse inspection.  He did not spell out what he meant precisely by the words "with a view" or what he meant by "tendered", and he did not, as in Burchard's case (…) purport to limit the power to that imprecisely stated by him.  In my view these dicta, long standing as they are and impressive as is their source, should not be understood as laying down, as would a rule of court, some arbitrary limitation on the exercise of the wide discretion of the judge to permit the documents to be used for the purpose of providing him or the jury, in the end, with the best available evidence testing by the accepted procedures of cross-examination.

   To do as the appellant submits, so as to treat these dicta as defining limits of jurisdiction, and then to apply the dicta literally, would produce quite anomalous results, virtually nullifying the effectiveness of the subpoena for production as used at least in this State for the last thirty or more years. 

   While much of the practice in New South Wales may be explicable on the basis suggested by Blackburn J. …, in my experience it has long been the practice in this State for the judge, even against opposition, to exercise a discretion to allow one party or the other to inspect documents which appear to be relevant to the issues, whether or not in admissible form.  As I understand past practices, where, however, objection is raised by the owner of the documents, the judge examines the documents with some care to ensure there is no abuse of the subpoena, and to determine whether the documents appear relevant in the sense that they relate to the subject matter of the proceedings, in which event he will permit inspection by one or both parties at an appropriate time.  The question of their admissibility without more, in accordance with the rules of evidence, does not then arise because, if relevant, they may be admitted in a variety of ways, as by first establishing facts or adopting procedures which make them admissible or by their being admitted by consent.  If apparently relevant, I do not see how the objections of the stranger could prevent their admission in evidence, by consent or otherwise, or the inspection which may lead to this occurring.  The ultimate question of whether they are ruled to be relevant and/or admissible is left to the third stage of receiving evidence.  In my view, this practice is within the wide judicial discretion already referred to, to permit inspection of documents in the control of the court pursuant to a valid subpoena.

   The crucial question in relation to the exercise of the discretion to permit inspection in the second step is whether the documents have apparent relevance to the issues.  It is at the third step that questions between the parties of relevance in fact and admissibility are ruled upon.  The judge is in some difficulty in determining whether documents are relevant prior to the presentation of the evidence or at the commencement of the case.  If there is particular objection from the witness, or questions of privacy are involved, no doubt procedures can be adopted to ensure that only relevant documents are inspected.  In other cases, it would appear appropriate to proceed to exercise the discretion, provided the documents are apparently relevant or are on the subject matter of the litigation.  However, the limitation on the exercise of the judge's discretion to allow inspection is that the document contains information of apparent relevance to the issues.  Once the judge has that opinion, inspection will normally be allowed, notwithstanding that the document is not admissible as it stands, and notwithstanding that the party seeking inspection has not given any undertaking to tender it, or use it in cross-examination.

   The discretion is one concerning the invasion by the subpoena procedure of the rights of a stranger by the party who seeks inspection in aid of the presentation of his case to the court.  No right of the opposing party is involved in making an order permitting inspection of a stranger's documents.  It is difficult to see on what basis he can object.  His right is to have only admissible evidence adduced.  The exercise of the discretion does not involve the determination of an issue between the parties as to the relevance or admissibility of the document.  It may well be, however, that the judge may hear, or indeed invite, comment from an opposing party, if the documents are such that elucidation of the truth may best be served by delaying inspection, or because the documents reveal matter private to such party or his associates and is irrelevant to the proceedings.  This may well be the case where the documents are produced as earlier indicated by some public authority and contain private matter, but the authority raises no specific objection on the presumed basis that it is the court's responsibility to permit or refuse inspection.  It follows that a party, in this case the plaintiff, has no right to object to the judge allowing the other party, in this case the first defendant, to inspect a stranger's documents, or to appeal if the judge allows inspection.”

1. It is important at this preliminary stage of our discussion of the relevant authorities to refer to the decision of the Full Court of this Court (Lindenmayer, Kay and Smithers JJ.) in Relationships Australia v Pasternak.  No reference was made to that case in the argument before us.  But we refer to it because it contains an express statement that Waind and Hill “does not apply to procedures in this Court” (at 83,376).

1. In our view, that statement must be seen as saying no more than that to the extent Waind and Hill might be seen as permitting the subpoena process to be used in a situation where the more appropriate process would be the third party discovery process, that decision should not be followed in this Court.  That this was the limited scope of the rejection of Waind and Hill by the Full Court in Pasternak is clear when the passage from the Full Court’s reasons for judgment which concludes with that rejection, is read (at 83,375-83,376) (underlining added):

   “It is convenient at this point to comment upon the procedure adopted in an attempt to seek production and inspection of documents in the possession of a person who was not a party to the proceedings. In the course of his reasons for judgment, Purdy J commented:

   ``At least in New South Wales it is the normal practice in all courts for subpoenae to be made returnable some significant period prior to hearing to enable inspection by all parties' legal advisers so there is reasonable time to incorporate in the proceedings thus obtained and in many cases to facilitate settlement before hearing.''

   Whilst such may be the practice in the other civil courts in New South Wales, it is not the appropriate practice to be followed in the Family Court of Australia. The Full Court said in Scheibner-Grover and Ryan (1987) FLC ¶91-833 at 76,266:

   ``We should not let the opportunity pass without making some observations about the use of the provisions of Order 28 as an aid to discovery. In our view Order 20 governs the practice and procedure for pre-trial discovery and inspection and Order 28 should only be used to ensure the production of appropriate documents at the hearing of any application.''

   …

   Order 20 rule 7 of the Family Law Rules sets out the appropriate procedure for an application for pre-trial production by persons other than parties to proceedings of documents sought to be inspected by one of the parties to the proceedings.  …

   …

   The subpoena procedure under Order 28 is aimed at an entirely different end. It is a procedure designed to require a person to attend before the court at the hearing of the proceedings to give evidence and/or produce a book, document or thing so as to enable the court to determine the issue between the parties in those proceedings. It is not in our view a substitute for the procedure laid down in Order 20 for pre-trial production and inspection.

   In McAuliffe v McAuliffe (1973) 4 ACTR 9 at 11-12, Blackburn J of the Supreme Court of the Australian Capital Territory said:

   ``Now when documents are produced on subpoenae duces tecum they are produced to the Court. The Court then decides whether they are to be inspected by the parties and their advisers. Normally there is no reason why such documents produced to the Court, under subpoena, may not be inspected by the party who issued the subpoena. There may, of course, be reasons why they should not at that stage be inspected by the other party.

   In my opinion it is clear on the authorities that subpoena duces tecum cannot properly be used for any of these purposes alone. The purpose of a subpoena duces tecum is to secure the production of a document to be used in evidence. It is not a substitute for discovery. Discovery is limited to parties to the action. It cannot be obtained against persons who are not parties, and a subpoena duces tecum cannot be used in a mere attempt to evade this rule.''

   A broader view of the subpoena process was taken by the Supreme Court of New South Wales in National Employers Mutual General Association v Waind & Hill (1978) 1 NSWLR 372. There the Court held that there was a three step process involved in documents being produced via subpoenae.

   The first step required the Court to determine any objections to the subpoena or the production of documents (one such objection being the use of the subpoena for the purposes of discovery). Secondly once it was established that the subpoena had been validly issued the documents were then in the control of the Court which determined whether or not they ought to be inspected and thirdly the Court then needed to determine questions of admissibility. Whilst Waind's case (supra) may govern the procedure to be adopted in the New South Wales State courts, it does not apply to the procedures in this Court.

   We raised the procedural irregularities with counsel at the hearing of this application but neither seemed interested in taking any point about it. It was not the matter dealt with by the notice to appeal. Each party was content to rely on "local practice". Bearing in mind the provisions of Order 4, rule 4 and s 97(3) of the Family Law Act, we do not intend to vitiate the proceedings due to this procedural irregularity. However we do not want practitioners to presume that such leniency will be available every time this irregularity is perpetuated.”

1. Moreover, it should be noted that the Full Court in Pasternak did not purport to over-rule the earlier Full Court (Fogarty, Kay and Hilton JJ.) decision of White and Tulloch v White, in which a passage from Waind and Hill was applied in determining whether the primary Judge had erred in requiring production and permitting inspection of certain documents. 

1. The Full Court’s discussion in White and Tulloch v White of the appropriate principles to be applied in the determination of disputes concerning the production and inspection of subpoenaed documents, is somewhat cursory.  Nevertheless we will set out what was said in that case, not only because of the apparent application of Waind and Hill, but also because the Full Court cite without criticism the decision of Treyvaud J. in Epstein (on which reliance was placed before us by Counsel for the Attorney-General and which was not the subject of any comment (adverse or otherwise) by the later Full Court in Pasternak).  The relevant passages from the Full Court in White and Tulloch v White are as follows (at 82,460-82,464) (underlining added):

   “It is necessary then to turn to the major argument supporting his Honour's orders, namely that the evidence was potentially encompassed within s. 75(2)(o). In examining that issue it is necessary to bear in mind matters previously referred to, namely that the point at issue before Cohen J was whether the documents were sufficiently likely to "add in the end to the relevant evidence in the case": see Waind v Hill and National Employers' Mutual General Association Ltd [1978] NSWLR 372; Spencer Motors Ltd v LNC Industries Ltd [1982] 2 NSWLR 921; Sharpe and Dalton (1990) FLC ¶92-167; Eighth Dictum Pty Ltd v The Commissioner of Taxation (Supreme Court of Victoria, unreported 1991) and Epstein and Epstein (1993) FLC ¶92-384.

   …

   Cohen J took the view that the production of this material was capable of being relevant, and the question for us is whether his Honour was wrong in the relevant appellate sense in reaching that conclusion.
   In relation to para. 2 of the subpoena his Honour concluded that the production of her present will would have apparent relevance. Whilst we do not wish to encourage such an approach as a generality, we do not consider that it is open to us to conclude that his Honour was in error on that aspect.  …

   However, we are not persuaded that production of the documents referred to in para. 3, namely copies of revoked wills, is shown to have a sufficient apparent connection to justify their production or inspection.

   We are also concerned about the width and effect of paras. 4 and 5 of the subpoenaed documents, namely certificates of title relating to property of which Mrs Tulloch is the beneficial owner "solely or jointly with any other person", share certificates "in respect of any shares held by (her) and any bank account, debenture certificate, or documentation evidencing any term deposits held by (her) or in (her) name at the present time and any epitome of mortgage under which you are the mortgagee at the present time".  … Presumably the approach adopted by the trial Judge was that if documents of a third party are relevant then, subject to any recognized claim of privilege or other objection, they are obliged to be produced notwithstanding that they represent an invasion of privacy so far as a third party is concerned. But here the matter is wider than that. We do not consider that on the material before him the trial Judge was correct in extending the production of documents that far. It appears to us oppressive to Mrs Tulloch to have to disclose detailed financial records in circumstances where that may prove ultimately to be of no more than marginal relevance. It is likely to widen the scope of these proceedings far beyond what is legitimate or useful and is not in accordance with a proper practice in these matters.”

2. In Epstein, Treyvaud J. had before him an application to set aside subpoenae to produce documents on grounds which included among others the ground that the subpoenae “are oppressive and as such, an abuse of the process of the Court”.  In deciding that the subpoenae should be set aside on this ground, his Honour provided the following analysis of the law in relation to the setting aside of subpoenae (at 79,969-79,970) (underlining added):

   “The relevant Australian law commences with the judgment of Jordan C.J. in the case of The Commissioner for Railways v. Small (1938) 38 S.R. (N.S.W.) 564 at 573:

   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 subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger to the cause ought not 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 issues of which he is presumably ignorant: Lee v. Angas; Burchard v. Macfarlane; A.-G. v. Wilson; Newland v. Steer. And if a subpoena duces tecum is issued to such a person in an objectionable form, the witness may apply to the Court to have it set aside.
   If duly served with such a writ and provided with the proper conduct money, the person served must obey it and bring to the Court the documents mentioned in the subpoena if he has them, unless he procures the writ to be set aside as oppressive.

   In 1978, in Lucas Industries Ltd. v. Hewitt 45 F.L.R. 175 and 189-90, Smithers J explained the use of the subpoena, and its abuse, in the following terms:

   The purpose of the process of subpoena is to facilitate the proper administration of justice between parties. For that purpose it is the policy of the law that strangers who have documents may be put to certain trouble in searching for and gathering together relevant documents and bringing them to court. It is according to the same principle that persons who have knowledge of facts are put to the inconvenience of being brought to court and required to give evidence.
   ...
   It would, no doubt, be a good reason for failure to produce documents that the effort and expense involved in doing so was greater than ought reasonably to be required. This is a matter which would at that stage be capable of rational resolution by the court according to the circumstances. So far as the effort and expense in arranging for production of particular documents in any case exceeded what was reasonable, their non-production would be acceptable to the court. But if a subpoena be wholly set aside on the grounds that on its face it is oppressive, then the subpoena wholly fails and there is the possibility that although some or even substantial compliance might have been undertaken with a minimum of effort, the whole procedure may be needlessly frustrated.

   In 1984, in Purnell Bros Pty. Ltd. v. Transport Engineers Pty. Ltd. 73 F.L.R. 160 at 174-5, Powell J summarized circumstances in which the Court would exercise its power to set aside a subpoena. Having done so, he took a global view of the Court's power, saying:

   It seems to me, however, that when, as one does, one finds assertions that the court's power to set aside a subpoena is but part of the inherent jurisdiction of the court (see, for example, R. v. Lewes Justices; Ex parte Secretary of State (supra) at 240 per Lord Parker C.J., 244 per Bridge J (as he then was) coupled with assertions that a subpoena will be set aside if it be used for an impermissible, or illegitimate, purpose, or, if to require compliance with it would be oppressive (see, for example, Commissioner for Railways v. Small (supra) at 573-575 per Jordan C.J.) it is difficult to avoid the conclusion that, in reality, the court's power to set aside a subpoena is but one aspect of the court's inherent jurisdiction to prevent an abuse of its process by a party to litigation, and that, accordingly, the particular classes of case which I have recorded above are to be regarded as no more than examples of situations which the courts, in the past, have held, and, in the future, would hold to be cases of an abuse of process.

   See also the comments of Cantor J in R. v. Barton and Ors (1981) 2 NSWLR 414 at 419-20.

   Here the grounds of alleged oppression are the lack of relevance and a lack of definition of much of the language used in the subpoenae.

   As to relevance, the law is that "production of a document on subpoena by a stranger is only required if the document is sufficiently relevant to the action in the sense that it is likely to add in the end, in some way or other, to the relevant evidence of the case". Waind v. Hill (1978) 1 NSWLR 372. See also Eighth Dictum Pty. Ltd. v. The Commissioner of Taxation (unreported) the Supreme Court of Victoria 1991 (per Hedigan J) where his Honour said:

   It is not, of course, always easy to determine whether the pursuit of documents by way of subpoena, the contents of which are not specifically known to the parties seeking to obtain the documents, amounts to fishing in the sense that the law understands that phrase.

   Moffit J.A. in Waind (supra) examined at some length the appropriate procedures that should be followed with respect to subpoenaing a stranger's documents.

   ... His Honour's analysis of the authorities (379-382) emphasises the impropriety, capable of remedy by an order setting aside a subpoena, of using a subpoena duces tecum as a substitute for discovery. Whilst the law is well familiar with cases in which subpoenae will be set aside on the grounds of oppression, either because it is so wide as to be oppressive or because it imposes an onerous task on the stranger to collect and produce documents which may have no relevance to the litigation, a subpoena may be an abuse of process in other ways.

   ... The law clearly is that a subpoena to produce documents directed to a person not a party may be set aside as oppressive or an abuse of process if the documents, production of which is required, are not sufficiently relevant to any question in the proceeding (see Small (supra) and Waind v. Hill (supra)). The latter case described the test of relevance as being that inspection should be granted if it is necessary for the proper conduct of the litigation in that it is reasonably likely to add, in the end, in some way or the other, to the relevant evidence in the case.

   The Courts have fashioned this feature of the right to set aside a subpoena as oppressive, or as an abuse of process, in respect of documents required of a stranger as a method of balancing the interest in the Court in compelling any witness who has relevant information which might assist the Court against the right of a stranger not to be compelled to come to the Court, with all its attendant inconvenience, unless what might be said or produced is a productive element.

   I hold that all subpoenae ought to be set aside on the ground that they are oppressive and an abuse of the process of the Court.”

1. As we indicated above, the Full Court in White and Tulloch v White appear to have relied on this analysis by Treyvaud J.

1. As discussed earlier, Counsel for the husband sought to convince us, that following the principles enunciated in Waind and Hill (which, subject to the appropriateness of using a subpoena to obtain third party discovery discussed in Pasternak, we would regard as continuing to be of persuasive authority in this Court), different concepts of relevance apply at the production stage in the subpoena process, and further that the concept of “potential relevance” (or more accurately, lack thereof), which is applicable at the production stage, cannot provide a separate or discrete ground for setting aside a subpoena but rather must form part of the ground of oppression or abuse of process.

1. We are not satisfied that the distinction in the concepts of relevance (or lack thereof) which Counsel attempted to draw for the purposes of the production and inspection stages of the subpoena process has validity.  Such a reading is not apparent to us on a reading of Mofitt P.’s reasons (see paragraph 40).  In particular, the statement in his Honour’s judgment that “[the] only legitimate purpose of requiring production, and permitting the inspection, of a stranger’s documents can be to add, in the end, to the relevant evidence in the case” (at 384) suggests that there is no distinction in the concepts of relevance to be applied in the production and inspection stages.

1. As to the proposition that lack of relevance cannot of itself be a ground for setting aside a subpoena but rather must constitute oppression or abuse of process, we consider that whatever may have been the position at the time that Waind and Hill was decided, the present state of authority is such that lack of apparent relevance will be a sufficient ground in itself to set aside a subpoena.

1. The decisions of Powell J. in Botany Bay Instrumentation & Control Pty Ltd and Another v Stewart and Another [1984] 3 NSWLR 98 and in Purnell Bros Pty Ltd v Transport Engineers Pty Ltd (1984) 73 FLR 160 can be seen as indicating that the classes of cases in which the Court would set aside a subpoena were not closed, although all might be seen according to Powell J.’s formulation as being within the concept of abuse of process. In Botany Bay, his Honour said (in terms very similar to what he said in Purnell) at 100-101:

   “Although a reference to the authorities makes it tolerably plain that the court will exercise its undoubted jurisdiction to set aside a subpoena in a variety of cases, as for example:

   1.        Unless the subpoena was issued for the purpose of a pending trial, hearing or application …

   2.        where to require the attendance of a witness would be oppressive …

   3.        where the subpoena had not been issued bona fide for the purpose of obtaining relevant evidence and the witness to whom the subpoena had been addressed was unable to give relevant evidence …

   4.        where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party …

   5.        where the subpoena has been used for the purpose of obtaining discovery against a third party …

   6.        where to require a party to comply with a subpoena to produce documents would be oppressive …

   7.        where the subpoena has been issued for a purpose which is impermissible, as, for example, “fishing” …

   the authorities do not make clear whether such classes of case to which I have referred above are to be regarded as the only cases in which the court will intervene, or whether such cases are to be regarded as merely particular examples of a broad class of case in which the court will intervene to exercise its jurisdiction to set aside a subpoena, or, indeed, whether the jurisdiction to set aside a subpoena is but one part of a wider jurisdiction of the court.  It seems to me, however, that when, as one does, one finds assertions that the court’s jurisdiction to set aside a subpoena is but part of the inherent jurisdiction of the court (see, for example, R v Lewes Justices; Ex parte Secretary of State for the Home Department (at 240 per Lord Parker CJ, at 244 per Bridge J, (as he then was)) coupled with assertions that a subpoena will be set aside if it be issued for an impermissible, or illegitimate, purpose, or if to require compliance with it would be oppressive( see, for example, Commissioner for Railways v Small (at 573-575 per Jordan CJ)) it is difficult to avoid the conclusion that, in reality, the court’s jurisdiction to set aside a subpoena is but one aspect of the court’s jurisdiction to act to prevent an abuse of process, and that the particular classes of case which I have recorded above are to be regarded as no more than examples of situations which the courts, in the past, have held, and, in the future, would hold, to be cases of an abuse of process.”

1. It will be seen that Powell J. did not include lack of relevance as a ground for setting aside a subpoena.  However, he did include the ground of oppression, and in the subsequent decision of Trade Practices Commission v Arnotts (1989) 88 ALR 90, where an entity known as Mattingly applied that a subpoena to produce documents issued by Arnotts be set aside on the ground of oppression, Beaumont J. expressed the view that the application required two questions to be addressed, being (at 103):

   “(1)     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 Arnotts [at whose request the subpoena was issued].

   (2)       Is the subpoena seriously and unfairly burdensome or prejudicial?  This is to  look at the matter from the point of view of Mattingly [who sought the setting-aside of the subpoena].”

1. It is reasonably clear from the manner in which Beaumont J. went on to apply these two tests to the subpoenaed documents in that case, that if the test of adjectival or apparent relevance was not met, the second question of serious or unfair burden or prejudice did not have to be addressed.

1. The two (and apparently disjunctive) tests applied by Beaumont J. in Arnotts have subsequently been applied by Cooper J. in Australian Competition and Consumer Commission v Shell Co of Australia (1999) 161 ALR 686, and by Goldberg J. in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) FCR 1599.

1. The latter decision has particular significance for present purposes in that having concluded that the ground of oppression was established, Goldberg J. went on to say that he had “also reached the conclusion independently of the ground of oppression that it is appropriate to set the subpoenas aside on the grounds of relevance”.  His Honour concluded that in his opinion, the documents sought were “of no apparent relevance … to the substantive issues in the principal proceeding”.

1. Further support for the proposition that relevance can now be regarded as a separate and distinct ground for the setting aside of a subpoena can be gained from the decision of the Supreme Court of South Australia in Santos Ltd and Others v Pipelines Authority of SA (1996) 66 SASR 38 where, in dismissing an appeal against the setting aside by the trial Judge of subpoenae to produce documents issued to BHP Bass Strait Pty Ltd and Esso Australia Resources Ltd, and where, at both first instance and in the appeal, relevance was treated as a separate ground from oppression (which in that case was said to exist because of the width and vagueness of the subpoenae). Debelle J. (with whom Cox and Prior JJ. agreed) said at 52, citing Trade Practices Commission v Arnotts:

   “A party seeking to uphold the issue of a subpoena seeking documents must prove that the documents have an apparent relevance to the issues in the in the arbitration…”

1. Given the state of the authorities as we have outlined them, it cannot, in our view, be said that in the present case by applying a test of “apparent relevance” in his determination that the subpoena to the Attorney-General should be set aside, Rose J. was in error as to principle.

1. There remain, however, the further issues raised by Counsel for the husband being (1) whether his Honour erred in determining apparent relevance by reference to the terms of the subpoena and to the paragraphs in the affidavits filed in the main proceedings, rather than requiring the Attorney-General (as the person to whom the subpoena was addressed) to establish that the documents in his possession were not relevant; and (2) the effect of the apparent concession by the Attorney-General’s adviser, Mr Grono, that some paragraphs of one of the documents in the Attorney-General’s possession were relevant to the issues in the principal proceedings as described in a letter from the husband’s solicitor.

1. In relation to the first matter, we are satisfied, having regard to the decision in Santos, that the approach adopted by Rose J. in the present case of requiring the husband to establish that the terms of the subpoena had some apparent relevance to the issues in the property settlement proceedings between the husband and the wife, rather than requiring the Attorney-General to establish that the documents in his possession did not have any apparent relevance to the main proceedings, was correct.  The obvious correctness of his Honour’s approach purely in practical terms can be demonstrated simply by asking the question: how could a complete stranger such as the Attorney-General know what issues would be relevant in property settlement proceedings between a husband and a wife?

1. Further, given that there are at the present time no pleadings in this Court, the only way in which apparent relevance of the subpoenaed material to the main property settlement proceedings could be established was by reference to the affidavit material filed in those proceedings.  His Honour considered the paragraphs in affidavits on which the husband relied.  His Honour found there was no apparent relevance between any issue raised on that material and the documents sought by the subpoena.

1. The matter of the apparent concession made by the Attorney-General’s adviser, Mr Grono, that the Attorney-General held a document which had some relevance to the property settlement proceedings, can be disposed of briefly.  The alleged concession or admission is in the opening sentences of paragraph 7 of Mr Grono’s affidavit and is in the following terms:

   “7.      The documents outlined in paragraph 3 above [that is, the documents in the possession of the Attorney-General] contain no obvious reference to any matter relating to the issue identified by the husband’s solicitor, with the exception of paragraphs 15 and 16 of the statement by Mr Constantinidis dated 26 May 1999.  That statement otherwise recites a history of Mr Constantinidis’ dealings with Mr Keating, not the husband or Mrs Hatton (the wife).”

1. It thus appears that Mr Grono is saying no more than that there is some reference in the paragraphs in the document in question to “the issue identified by the husband’s solicitor”.  We note in passing that a reading of the letter of the husband’s solicitor does not reveal exactly what the issue was.  But however that may be, whatever the assertion in Mr Grono’s affidavit, it remained necessary, in our view, that his Honour should be able to identify any apparent relevance between the issues which could be said to arise from the husband’s affidavit material and the terms of the subpoena.  He was unable to do so.

Conclusion in relation to the subpoena to the Attorney-General

1. We are thus satisfied that there was no error of principle on the part of his Honour in his decision to set aside the subpoena to the Attorney-General such as would justify the grant of leave to the husband to appeal his Honour’s decision.

1. As to whether such leave should be granted on the basis that the decision works an injustice to the husband, it was submitted on behalf of the husband that the decision works “a practical injustice” to the husband in that its effect is to inhibit the proper investigation of the assets of the parties, thus preventing the husband from refuting the claim that he has already had the benefit of a substantial part of the parties’ assets.  Again, that submission would seem to overlook the fact that his Honour was unable to find any apparent relevance between the terms of the subpoena and the issue which would arise on the husband’s affidavit material.

1. Overall, we are not satisfied that the decision to set aside the subpoena to the Attorney-General would work a sufficient injustice on the husband to grant him leave to appeal that decision.  Accordingly, leave to appeal Order 1 of his Honour’s orders of 11 August 1999 will be refused.

THE SUBPOENAE TO THE BANKS

1. Under the subpoena to the Commonwealth Bank, production was required of:

   “1. Any records showing payment of “the residual debt” referred to in Deed dated 27 April 1996 (the “deed”) between Commonwealth Trading Bank of Australia and Cliros Pty Ltd, Rincraft Pty Ltd and others, a copy of which is annexed.

   2.   Copy of the joint venture restructure deed referred to in paragraph 5 of the deed.

   3.   Copy of any document releasing Achilles Constantinidis, or Maria Constantinidis, or any companies referred to in the Deed from any debt, from the obligation to repay all or any debt, including capital and interest that may have existed between 1987 and current date and owed by any of those entities.

   4.   Account balances from date of inception to date of discharge for mortgage R … in the name of [Mr] and [Mrs] Hatton as mortgagor and Commonwealth Trading Bank of Australia as mortgagee securing debts owing by [Mr] Hatton and [Mrs] Hatton, Jan Brown and John Brown and dated 18 May 1979.

   5.   All files, including without limitation, correspondence and copy correspondence, file notes, memoranda, deeds, agreements and other documents to or from the mortgagors or their representatives relating to the mortgage or the account or accounts secured by the mortgage.”

1. Under the subpoena to the Development Bank, production was required of:

   “1. All account statements and balances for accounts secured by mortgage Y… dated 24 May 1989 entered into by [Mr] Hatton and [Mrs] Hatton of Clovelly, and secured on property in folio identifier … for borrowings by and monies lent to Rincraft Pty Ltd.

   2.   All files and without limitation all correspondence and copy correspondence, memoranda, internal file notes, deeds, agreements and documents relating to the conduct of:

   2.1the account or accounts which the above mortgage secures and

   2.2 the mortgage. ”

1. The case for both banks for the setting aside of the subpoenae issued to them (save for paragraph 4 in the case of the Commonwealth Bank and paragraph 1 in the case of the Development Bank) was that the subpoenae were oppressive, both because of lack of relevance and because of the burden which location and production of the documents sought would impose on the banks.

1. It appears from his Honour’s ex tempore reasons that he concluded in relation to the subpoena to the Commonwealth Bank that there were not any documents to be produced in response to paragraphs 1 and 2, and that the test of “apparent relevance” had not been met in respect of paragraphs 3 and 5 (paragraph 4 having been complied with).  His Honour’s reasons were as follows (underlining added):

   “It is convenient to also proceed to deal with the subpoenae addressed to the Proper Officer of the Commonwealth Bank of Australia and the Commonwealth Development Bank.  Mr Lloyd of counsel submitted in support of the application for those subpoenae to be set aside that they are in their terms oppressive.  The oppression complained of is a combination of a lack of relevance and/or the documentation that must be identified, gathered and produced if the subpoena is in fact to be complied with in each instance.  Counsel also submitted that certain documents would nonetheless be produced which include monthly balances for the period 1991 to 1995 for Mr and Mrs Hatton, in terms of paragraph 4 of the subpoena.  Otherwise, there were not any documents to be produced in answer to paragraphs 1 or 2.  With regard to the remaining paragraphs, in my view, the test of apparent relevance has not been met.

   In support of the submission by Mr McPherson that the application to set aside the subpoena to the Commonwealth Bank of Australia should be dismissed, he relied on the same material which I have already identified in dealing with the application by the Attorney for setting aside the subpoena addressed to him.  Again, in my view, the width of the documents called for, quite apart from their subject matter, as well as the period of time referred to in the subpoena, especially in terms of paragraph 3, do not attract apparent relevance.  I make the same findings in terms of paragraph 5.

   Therefore, whilst I note that documents will be produced in answer to paragraph 4 as indicated by Mr Lloyd, I otherwise propose to set aside the remainder of the subpoena.”

1. In relation to the subpoena to the Development Bank, paragraph 1 was complied with by that bank, and his Honour ruled that paragraph 2 should be set aside on the basis that it failed the test of “apparent relevance” in the following terms (underlining added):

   “…  Paragraph 2 calls in effect for every document that the Bank might have regardless of the significance, or whether or not it was an internal document, or otherwise to be produced in respect of “the account or accounts to which the above mortgage secures and the mortgage”.  Although, the particular mortgage is not precisely identified in that paragraph, inferentially, it must be the mortgage referred to in paragraph 1 of the subpoena.  Again, in my view, none of the material to which my attention was drawn by Mr McPherson makes it apparently relevant that all of the material called for in paragraph 2 should be produced to satisfy the test of apparent relevance.  Indeed, in my view, the material called for does not appear to have any relevance at all to any issue raised in affidavits relied upon by Mr McPherson for that purpose.  Consequently, I propose to set aside that subpoena, noting that various documents will be produced by the Bank.”

1. In relation to the setting aside of paragraphs 1 and 2 of the subpoena to the Commonwealth Bank, Counsel for the husband conceded before us that it was accepted by his client that there were no documents of the type described in those paragraphs.  However, it was asserted that the non-existence of the documents did not provide a basis for setting aside the subpoena and this was a point which Counsel for the banks was apparently prepared to concede.  However, it is not a point which would cause us to grant leave to appeal and so we will not concern ourselves with it.

1. It is therefore only his Honour’s setting aside of paragraphs 3 and 5 of the subpoena to the Commonwealth Bank on grounds of lack of relevance which requires our consideration.

1. In relation to paragraph 3, there was before us considerable discussion as to why documents concerning the release of Mr Constantinidis (or persons or entities connected with him) from any debt (which is the subject of paragraph 3 of the subpoena) may have had relevance to the property settlement proceedings between the husband and the wife.  However, the issue that we have to decide is whether his Honour was wrong in determining on the material before him that the documents sought by the subpoena had no relevance to any issue which could be seen to arise in the property settlement proceedings.  Nothing was put to us to establish that his Honour was wrong on the material before him and in the approach he adopted to the application before him (which approach we have earlier determined was correct).  It is certainly not a matter which would justify the grant of leave to appeal.

1. Counsel for the husband considered it convenient to argue the position in relation to paragraph 5 of the subpoena to the Commonwealth Bank and paragraph 2 of the subpoena to the Development Bank together.  This was on the basis that the documents sought in the two paragraphs in issue could be seen as ancillary to the account balances or statements which the banks were prepared to produce pursuant to paragraphs 4 and 1 of the respective subpoenae.

1. It was submitted on behalf of the husband that all bank records relating to the accounts and mortgages of the husband and the wife would have to be potentially relevant to property settlement proceedings between them, and that no evidence had been adduced that the production of such records would be “unacceptably burdensome”.

1. The response of Counsel for the banks to these submissions was, as we understood it, that his Honour was entitled, because of the width of the terms of paragraphs 5 and 2 of the two subpoenae in question, to conclude that much of the material would be irrelevant and accordingly the subpoenae were oppressive.  It was further submitted for the banks that the husband’s representatives should have sought to amend the subpoenae to limit their scope (which was a course offered by the banks before his Honour).

Conclusion in relation to the subpoenae to the banks

1. It may well be that in respect of paragraph 5 of the subpoena to the Commonwealth Bank and of paragraph 2 of the subpoena to the Development Bank that his Honour could have expressed himself a little more precisely.  Nonetheless, it is sufficiently clear to us that he must have considered the terms of the paragraphs in question to be so wide that they would encompass documents which would clearly be irrelevant to the main property settlement proceedings, and thus could be regarded as oppressive.  It does not seem to us that any reason exists as to why the husband and his advisers should not take up the banks’ suggestion that the subpoenae be more carefully and precisely drawn. 

1. Having regard to all these considerations, we would not be prepared to grant leave to appeal his Honour’s orders setting aside in part the subpoenae to the banks.

COSTS OF THE APPLICATION FOR LEAVE TO APPEAL

1. At the conclusion of the hearing before us, we received submissions in relation to the costs of the application for leave to appeal and the appeal.

1. Having regard to the fact that the husband has been unsuccessful in his application to obtain leave to appeal the orders of 11 August 1999, and to the oral submissions made to us on behalf of all parties, we consider that the circumstances justify the making of an order that the husband pay the costs of the Attorney-General and of the banks, with such costs to be taxed in default of agreement.

ORDERS

1. That the application for leave to appeal the orders of the Honourable Justice Rose made on 11 August 1999 be dismissed.

1. That the husband pay the costs of the Attorney-General of the Commonwealth of Australia, and of the Commonwealth Bank of Australia, and of the Commonwealth Development Bank of Australia, of and incidental to the application for leave to appeal, with such costs to be taxed in default of agreement.

I certify that the preceding 79 paragraphs
are a true copy of the reasons for judgment
of this Honourable Full Court

Associate