Hoffman and Hawking
[2011] FMCAfam 877
•22 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOFFMAN & HAWKING | [2011] FMCAfam 877 |
| FAMILY LAW – Practice and Procedure – subpoena objection – abuse of process – costs. |
| Family Law Act 1975, s.117 |
| Hatton & Commonwealth of Australia and the Commonwealth Bank [2000] FamCA 892 Blann & Blann (1983) 9 FamLR 69 Hatton & Attorney General & Ors [2000] FamCA 892 |
| Applicant: | MS HAWKING |
| Respondent: | MR HOFFMAN |
| File Number: | CSC 598 of 2009 |
| Judgment of: | Willis FM |
| Hearing date: | 1 February 2011 |
| Date of Last Submission: | 1 February 2011 |
| Delivered at: | Cairns |
| Delivered on: | 22 March 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Cope Family Law |
| Solicitors for the Respondent: | O'Reilly Stevens Bovey Lawyers |
| Independent Children’s Lawyer: | Susan Gray Solicitor |
| Intervenor: | MacDonnells Law |
ORDERS
The husband pay to the wife’s the costs of and incidental to the subpoena hearing application to be taxed on the Family Court scale.
The husband pay the Independent Children’s Lawyer’s costs of and incidental to the subpoena hearing to be taxed on the Family Court scale.
The husband pay the [C]’s costs of and incidental to these proceedings, to be taxed on the Family Court scale.
It is deemed that this matter was an appropriate matter to engage Counsel.
The subpoena issued to Farrellys Lawyers is set aside.
The subpoena issued to Suncorp Banking Queensland is set aside.
The subpoena issued to [C] is set aside.
The husband is restrained from directly or via his solicitor issuing any further subpoenas without the personal leave of Federal Magistrate Willis.
IT IS NOTED that publication of this judgment under the pseudonym Hawking & Hoffman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CAIRNS |
CSC 598 of 2009
| MS HAWKING |
Applicant
And
| MR HOFFMAN |
Respondent
REASONS FOR JUDGMENT
(Ex tempore)
This is an application to set aside three subpoenas. The applicant is the wife and the respondent is the husband. The respondent husband has issued subpoenas to the following organisations: Suncorp, [C] and Farrellys Lawyers. The parties have commenced property and children’s proceedings. The wife is the applicant and the litigation commenced in January 2010.
In 29 September 2010 orders were made for this matter to be set down for a two-day hearing and standard trial directions were issued. Each of the parties have filed affidavit material in support of their prima facie position as they are required to do under the rules as the matter has been allocated a trial but not yet been given a trial date.
The material canvassed in each of the parties’ affidavits filed to date is fairly voluminous and it is difficult to think of anything else that is going to be added to those affidavits for the trial. The husband, through his solicitor, has issued subpoenas to the three organisations mentioned. The wife has objected to the subpoena on the basis of being oppressive and irrelevant. I shall look at each of the subpoenas in turn.
The Law
Before doing so I can indicate that I have regard to the law in this matter and that the leading Family Court authority is Hatton & Commonwealth of Australia and the Commonwealth Bank.[1] I have read and had regard to. I have also had regard to Blann & Blann (1983) 9 FamLR 69 amongst other cases. Both of those cases take me to other cases take me to other cases on this topic. I was given submissions by each of the parties which helpfully provided other references and I thank each of the parties for their written submissions.
[1] [2000] FamCA 892.
Subpoena – [C]
The first subpoena I will deal with is the [C] subpoena. This subpoena is addressed to the Manager of Human Resources, [C] and filed on
16 November 2010. I should say that the notices of objection to subpoena are, of course, relied on by the wife and they have been filed, I think, by leave on 7 December 2010 but the documents to be read by each of the parties are contained in written submissions.
The subpoena to the Manager, Human Resources Department, [C] asks:
Please produce all your files and documentation and employment records in relation to Ms Hawking, date of birth [omitted] 1969 and any file notes, memorandum, investigations with respect to her relationship with [employee X], date of birth [omitted] 1951. Please also produce files and documents and employment records and particulars in relation to her termination of employment at the [C] in her role as [omitted].
The two issues about which the husband has issued a subpoena were therefore the relationship between the wife and [employee] X and all files and documentation and employment records and secondly, particulars in relation to her termination of employment at the [C] in role as [omitted]. It seems that through the solicitor for the husband, without issuing a subpoena, a written request was made for another document entirely being a report prepared by senior counsel for the [C], [Mr H] S.C., known as the [Mr H] report.
The subpoena issued on 16 November 2010 is objected to for various reasons, both by Mr Jacob of counsel on behalf of the [C] in a notice filed on 7 December 2010 and Ms Cope on behalf of the mother/wife filed on 1 December 2010. The basis of the objection is two fold: (a) legal professional privilege in relation to the [Mr H] report, which was required to be provided by the husband’s solicitors the day before the hearing and (b) the subpoena as issued is oppressive and an abuse of Court process, that includes that the subpoena is a fishing expedition and reference is made to the huge amount of documents requested which is oppressive. The subpoena is being used as discovery which is inappropriate and that the subpoena issued is irrelevant to the proceedings before the Court.
On the issue of the [Mr H] report, by letter of 31 January 2011, the day before the hearing, the solicitor for the husband sent, for the first time, a letter stating that they were now requesting a document referred to as the [Mr H] report which was not previously identified in the subpoena. This followed on from a letter of 12 December 2010 which was written to the husband’s solicitors to the solicitors for the [C]:
We would be pleased if you would advise what the cost would entail if we continued to pursue the subpoena and sought only the [Mr H] report. Please advise of the cost and your client’s attitude.
Mr Jacobs, for the [C], submits, and I accept, that the letter does not state that the only document being requested was the [Mr H] report. It actually says:
We would be pleased if you would advise what the costs would entail if we continued to pursue the subpoena and sought only the [Mr H] report. It also simply seeks the views of the [C] on this issue.
The letter does not state outright that the documents are not sought in relation to the subpoena or that a subpoena is going to issue directed to the [Mr H] report and it does not provide the dismissal of the subpoena filed on 16 November 2010. That letter is actually couched in terms which suggests the subpoena will be pursued. The letter forwarded on 31 January 2011 is the first letter that raises the [Mr H] report.
Once that letter was replied to, late the same day the husband’s solicitors then challenged the advice contained in the letter from MacDonnells solicitors to the effect that the report prepared by [Mr H] of Senior Counsel was privileged. Correspondence was still being written by the husband’s solicitors on the morning of this Court hearing asking MacDonnells solicitors four the [C] if the wife had been given a copy of the report. There is a concession at the hearing that even the [Mr H] report is no longer pressed as the claim of privilege is accepted.
The entire exercise in issuing the subpoena has therefore amounted to nothing and Mr Jacobs, and likewise Ms Cope, seek costs against the husband for issuing the subpoena in the first place, noting his final acquiescence to the notice of objection. On the one hand the solicitor for the husband say they only wanted the [Mr H] report in the end. That may have been so, but that was the night prior to the hearing and even so, the request to ask for the [Mr H] report, was unsuccessful. The husband now accepts that this is a privileged document. Given that it is a report compiled by Senior Counsel for the [C] it is not difficult to imagine that its sole purpose or primary purpose was to provide legal advice.
I note the husband’s solicitors’ correspondence written on the morning of this hearing contends that had there been a waiver of legal privilege if the document had been provided to the wife, which it had not. As to the relevance of the contents of the [Mr H] report, in the substantive matter before the Court, that has never been explained to me at any stage in this hearing.
Mrs Reaston, solicitor advocate for the husband says that she didn’t intend to address me on relevance as to the subpoenaed documents because she understood that she had advised the solicitor for the [C] that they were only seeking the report of [Mr H]. Nonetheless
Mrs Reaston for the husband rejects the other objections raised by
Mr Jacobs of Counsel on the grounds of oppressive, irrelevant, fishing expedition but at the same time concedes that the husband is no longer pressing the issue of defending the objection to the subpoena. I imagine that is done on the basis to attempt to demonstrate that a costs order made against the husband is not appropriate.
I am satisfied that the husband has therefore abandoned his subpoena request of the documents referred to in the subpoena. That with a request for the [Mr H] report, the day before this hearing. The husband has challenged the claim of legal privilege, still on the morning of the hearing. The privilege of the [Mr H] report is but one issue in relation to the issue of the subpoena. The husband has abandoned his opposition to the notice of objection which means the [C] and the wife have been successful in their objection to the subpoena.
I will make the following observations about the issue of the subpoena to the [C]. The explanation for the relevance of this information that has been provided to me is not accepted as having any relevance to my determination of either children or property matters. The matters before me relate to parenting issues. The wife’s application seeks orders that the children live with her and spend time with the husband each alternate weekend. This is once the Court is satisfied that the husband poses no risk to the children. Property orders were sought. The husband’s response was filed on 23 February 2010 and that application sought a week about shared living arrangement and property orders.
Looking at the subpoena, the first part, the documents relating to the relationship between the wife and [employee X]. The extent of the relationship between the wife and other men has been, in my view, a preoccupation of the husband in this matter. This issue was apparent to me on the first return date in the Federal Magistrates Court in Cairns. The husband had included in his affidavit, under the heading of “The Mother Building up her Business”, the name of a CEO of a [omitted] in Cairns. The husband said that it was the wife’s biggest client and that the wife spoke a lot about this person.
There were inferences of something going on. I recall asking a person’s name to be removed from an affidavit. The husband, in a later paragraph, decided to include an intensely personal account of sexual activity in 2007 between himself and the wife. The incident had no relevance except to illustrate that the wife had been out with friends and came home intoxicated.
At the mention of the matter on 29 September 2010, I was informed by Mrs Reaston for the husband that the husband sought to amend his response. That the response of the husband may have said equal time but that her instructions were that the husband would be seeking from Friday to Monday and then Wednesday in the alternate week. The husband had been collecting the boys on Wednesday afternoons after school and taking them to soccer and he would hope to just increase that to an extra night and “so that is the extent of what his application will be”. It is on page 3 of that transcript.
Mrs Reaston has advised me, (in response to the Independent Children’s Lawyer inquiring, if the parties intend to have material from their partners) that contrary to the wife’s assertion that the children spend about once every three weeks with Mr X, the husband instructions are that the children have been talking about Mr X quite often, regularly in fact, and that they have been on camping holidays so:
We have a bit of disquiet and there are recent news articles that Mr X is undergoing some court case and has had symptoms of suicidal ideations and that the husband’s source of knowledge was the local newspaper.
I made it very clear (page 5, line 15) that I was not having a show trial where people were bought into this Court and asked whether or not they are having an affair with the wife. I said:
I am not having – and I think I have said this before – this is not a trial about who the mother has had an affair with or not. If the mother wants to swear on oath that she is not in a relationship with this man, what will we do? Haul him in and cross-examine him?
Mrs Reaston said:
No, I don’t think the husband is seeking that. If the mother swears on oath that the children are not having significant time with this man, well, then that will do.[2]
Question:
[2] Transcript page 5, line 15.
Is the issue that they are not left in his care?
That is so, your Honour.
I directed the wife to file an affidavit about the alleged concern of the husband that the wife had a partner and the children were left in his care. That was filed on 24 November 2010. I made it abundantly clear that I was not having a trial about who was sleeping with who. I said again, at page 7:
I know this matter has got a history to it. I am certainly not having this as some sort of show trial where people are being bought in and out and asked who had what relationships with who. Let me make that absolutely clear.
I can see that even before the wife’s affidavit was filed, and notwithstanding my very clear directions to the parties that I was not having a trial about the wife’s alleged affair, that a subpoena has been issued by the husband’s solicitor to the [C] asking them to provide all the documents, notes, files, memorandums, investigations with respect to the wife’s relationship with [employee] X.
The husband says that Mr X is someone who has once collected the children from school. This could hardly be a reason for requesting the [C], the wife’s employer, for all the files and notes and memorandums and investigations with respect to the relationship with [employee] X or if they are an employer of [employee] X to provide all of that information.
If the wife has been on holiday with Mr X on and off, in present or in the past, that is not a reason to issue the subpoena which issued. It is clear to me that the husband considers that his belief that the wife has had an affair with [employee] X, is a matter to be litigated in these proceedings. I am referred by Mrs Reaston to a sentence in the wife’s material which, when explaining the difficulties that she had post-separation, added a sentence saying:
The husband had made or contributed to my difficulties.
I do not accept that this is justification for issuing the subpoena. I reject, out of hand, that the sentence is in anyway to be regarded as a cornerstone of the wife’s case. It is written in the context of overarching complaint of the wife of the difficulties which arose when the husband believed she was having an affair with the [employee], her involvement with the [employee] became a matter of gossip of discussion in the Cairns community and was part of a bigger turmoil at the [C] involving an incident referred to as the Cairns version of “cash for comments”.
Much controversy was raised in the public arena. The wife was the [occupation omitted] and amidst it all the husband believes that the wife has an affair with the [employee]. The husband himself has admitted to ringing up talkback radio and asking why the wife resigned. This has added to the wife’s difficulty. There is other similar evidence from the husband of his conduct which he has made post-separation in that period and which has made the wife’s time more difficult. The relevance of the subpoena is not accepted by me. I am dealing with a specific issue as to whether or not the children will spend an extra night with the husband in the off week. As to the reasons put forward by Mrs Reaston, who has tried valiantly to try and persuade me that it was appropriate to issue the subpoena and that the information being sought was somehow relevant to my determination of the children’s matters, having listened to those explanations. I reject them entirely. I am aware of the independent children’s lawyer submissions that in her view, the husband was somewhat obsessed with that aspect of the wife’s life. I agree.
To even request the [Mr H] report suggests to me that the husband will not let up on his quest for knowledge about the wife. I am satisfied that he has used the Court process to achieve an ulterior purpose, that is, to obtain information that he could not otherwise obtain about the wife and Mr X and that he has done that for his own purposes. This use of a subpoena is referred to in various of the cases. It is specifically referred to in Blann & Blann and on page 5 there is reference to decisions of Re Smith; Williams v Frere; R v. Greenway[3]. The case refers to explanation of the purpose of the subpoena being for private purposes or ulterior motives. The reference is that this use is improper[4] and that refers to a decision in Small’s case the objection being, it goes on to say:
That it would be an improper use of a 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 some other private purpose or in collusive proceedings to give them publicity.
[3] Blann & Blann (1983) 9 FamLR 69 at paragraph 78197.
[4] at paragraph 78198.
Improper use is also referred to Hatton & Attorney-General & Ors[5] and as I said, at page 577 refers to Waind & Hill and Moffatt J. The [C] have had to engage counsel and solicitor to act on their behalf in lodging an objection to this subpoena. The wife has had to come Court to lodge her objection to this subpoena. The hearing occurred at a time when the [C] had little notice of the application through the service in circumstances where only a day or so notice was given.
[5] [2000] FamCA 892.
On that occasion Mrs Reaston made submissions that she had not even had time to have discussions with the [C] once she issued the subpoena and before they appeared in regard to the notice to object to the notice filed by Ms Cope. I do not really understand why one would issue a subpoena allegedly for a specific purpose and then hope to have settlement discussions with the party who is in receipt of the subpoena. In any event, time was allowed by me and those discussions took place. It seems from the material tendered, as I said, that there has been some attempt to negotiate away from the original subpoena and that the attempt to obtain these documents has all come to nothing.
The [Mr H] report has come into the focus of the husband and he has decided to pursue that privileged report. I am satisfied that the broadness of the subpoena was done in such a way as to be cast in terms of discovery and that in itself is improper use of a subpoena. There is no evidence before me that the process of discovery was entered into by the husband to ask that the wife provide any documents that may have been relevant. I regard the subpoena as being oppressive in its breadth.
I regard it as being irrelevant. There is no explanation as to why even the [Mr H] report would have assisted and I do not accept that it would have. I am particularly troubled that the subpoena was actually issued at all, given after the first mention of the matter I was critical of the husband for including in his material, reference to a third party whose character I believe the husband was attempting to besmirch. I insisted that his name be removed from the affidavit.
I was told that it must have been an oversight on the part of the husband’s lawyers when preparing the affidavit. I made it very clear that the Court was not interested in whether the wife had an affair with the [employee X] and that this Court was not going to be used as a vehicle for the husband to try and ventilate the whole issue. I reminded the husband that no fault divorce came into Australia in 1975 and that if his marriage was over it was over.
I regard the husband, as I said, as being somewhat obsessed with this issue and I have dealt with any issues that may have arisen in relation to the [employee X] by way of evidence from the wife.
Costs
I refer to all of those matters in terms of conduct canvassed by me, section 117 the relevant section for costs. Looking at the other matters under section 117 which I refer to the husband’s application has been wholly unsuccessful and was not ultimately pressed. I regard his conduct in issuing the subpoena as being entirely for an ulterior purpose and to that extent an abuse of process. The husband is privately funded. The subpoena was irrelevant and oppressive and I regard this as his insistence on issuing a subpoena, after I made my position very clear, as extremely troubling. I regard his conduct as being totally unacceptable.
Ms Cope on behalf of the Wife has had to come to Court in relation to this subpoena and others and so too has the [C], Ms Gray the ICL has attended the hearing. I intend, therefore to make an order that the husband pay the cost of the [C] of and incidental to the subpoena hearing. I certify for counsel. Given the gravity of the conduct of the husband I intend to order that costs be assessed on the Family Law scale. This is hearing that could have taken place in either Court. It has taken place in the Federal Magistrates Court. The issues are as difficult in either Court. The scale in the Federal Magistrates Court, to my view, does not adequately compensate the parties that have had to come today to appear in this Court to lodge their objection.
Subpoena - Suncorp Building Society
In relation to the subpoena to the building society, it was submitted that this subpoena was issued so that the husband could determine whether or not the wife was telling the truth when she said she did some voluntary work for a period of time for an employer. The husband says that as far as he is concerned, she was paid for some of her work and therefore it is an issue of credibility.
The subpoena, on that occasion, is to the building society Suncorp. I would have thought that if there was an issue about whether or not the wife worked on a voluntary basis or not, and I do not accept that is an issue which would in the context of a children’s matter carry any weight, and I would have thought that could have been obtained by issuing a question to the wife through either correspondence or specific questions.
I would have thought that if it was such an important issue that the subpoena, if it was to issue, and I am not saying it should have, would have been directed to the employer concerned rather than to a building society asking for copies of all the wife’s bank statements, as has occurred. I can see reference in the husband’s material to his assertion that the wife has not declared a sufficient income and that he has had to tell the child support agency of this fact. It seems to me that it is more likely that the husband was trying to gather information in support of an action he intended to bring in relation to child support rather than this matter. I regard the issuing of this subpoena, as being an abuse of process.
I can see no evidence of a prior request for disclosure from the wife of all documents relating to her alleged employment with her employer or requesting documents evidencing her income. Nor do I see specific questions that have been issued. I note, as I said, that the husband has not issued a subpoena to the agency where the wife is alleged to have worked. If that was really the husband’s intent he could have subpoenaed the employment file.
He instead subpoenaed Suncorp to produce files, statements and documentation in relation to the wife, including but not limited to her bank accounts and payments from [B] in or about September/October/November 2009. It was not just bank statements. The subpoena, once again, is drawn in terms of an order for discovery. “All documents but not limited to” it is casting a net to see what can be caught. Ms Cope, solicitor for the wife objects on behalf of the wife and says the subpoena is oppressive, cast too wide, irrelevant and unnecessarily invasive of the wife’s privacy, particularly in view of the allegations of the wife of domestic violence being perpetrated by the husband, some of which is denied and some of which is admitted. I accept that the subpoena, directed to the institution casts a wide net and it does represent an invasion of her privacy.
The bank records would show all of her spending, her purchases, what day and where. One’s life can be tracked these days from reading bank statements. I regard the issuing of a subpoena to obtain all of the wife’s bank statements and more, in a children’s matter allegedly justified on the basis that there was a credibility issue at stake about whether or not she volunteered or worked for paid work for a period of weeks or months as being entirely misguided. I do not accept that it was an appropriate use of the subpoena.
In any event, even if it was, there is no evidence to say that the wife would have banked such money in that account. I do not accept it was a credibility issue in relation to a specific issue which I am to decide on a final trial. I consider that, in light of all the other complaints of the wife of intimidation by the husband and the intrusive manner that I regard these subpoenas as having been issued, that it is open to me to conclude that the husband has been using this Court to try and obtain more information about the wife’s private life as he possibly could.
I regard the issuing of that subpoena as an abuse of process. I am very troubled by the conduct of the husband in his attempts to use this Court as another way to trace the wife’s movements and private life. I am satisfied that the subpoena ought to be set aside. In relation to the costs in that matter, the same submissions can be said that the husband has been wholly unsuccessful in the subpoena objection. He is privately funded. I am critical of his conduct and I am satisfied that it is entirely appropriate that he pay the wife’s costs of and incidental to proceeding to this Court to oppose the issuing of the subpoena and also the costs of the independent children’s lawyer.
Subpoena – Farrellys Lawyers
As to the subpoena to Farrellys, the submissions has been made that they didn’t object. I have no great comfort in hearing that they didn’t object. They are not parties to litigation. The costs of objecting must be factored in. Generally they would comply with it. A subpoena is a Court order to provide documents or attend or both. The subpoena has to it a great strength, with sanctions for non-compliance. That is why the issuing of subpoenas is guarded so closely by this and other Courts. It is not an instrument to be used by litigants to satisfy their own curiosity or for other purposes.
If someone objects, it costs them money to come to this Court to object. The solicitors at Farrellys, do not to know what the machinations are of this Family Law controversy. They will, of course, comply, unless they have some reason to believe that the subpoena is objectionable. This subpoena was issued to provide evidence that the husband was asked on the date of settlement to go out and fix up fire alarms at the matrimonial house needed to have before settlement of sale.
The husband said he went out to the house at the request of the agent’s solicitor. He says, therefore, that because the wife says he was “keen” for him to go out that he is entitled to issue a subpoena to Farrellys at that the conveyancing file will reveal something that will in fact prove that he did have to go out. The wife’s material does not deny that he had to go out. The husband said he had to go, that there was something wrong with the fire alarm and that if he didn’t attend to it was going to stop settlement. The wife doesn’t say he did not have to go out. I am told by Mrs Reaston it is simply a matter of the wife saying he was “keen to go out”, that needs to be disproved. The wife not deny the husband went out to the house.
The purpose of the subpoena to me, in some way, seems pointless. It does not go to prove that he was “keen to go out.” The wife has admitted he had to go out. He had to do it to effect a settlement. The husband was asked to go. I regard the subpoena as being not directly relevant. There is no real purpose provided as to why the file would be able to tell me whether or not the husband was keen. Surely it is going to tell me that he was asked to go out, in a hurry, at the request of the agents. That is what the wife said. The objection to the subpoena on the basis that it was irrelevant in a children’s matter, in my mind, is upheld.
Mrs Reaston says that the issuing of the subpoena may assist in not having to call another witness. I find it difficult to imagine that I would allow a witness to be called by subpoena to give evidence to say that a fire alarm system in a house needed fixing before a settlement date and the husband was asked to go out to it. The facts are not in contention. I cannot understand how this would assist me to determine whether or not a child should spend an additional time, one night over night, with the husband.
Ms Cope says that it is not disputed that the phone call took place. The wife says he was keen to go out. That, to me, is a matter for cross-examination. Quite frankly, I don’t know how the wife would know whether he was keen or not. I am, however, setting aside the subpoena. I consider it irrelevant. If, however, there is a matter that still arises in relation to that matter, I will hear any further application in relation to the issuing of such a subpoena.
At this stage I see no relevance in issuing the subpoenas. I also intend to make an order that the husband directly and/or through his solicitors is restrained from issuing any further subpoenas without my personal leave.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Willis FM
Date: 25 August 2011
0
1
1