Inch & Inch

In the Family Court of Australia at Melbourne, Guest J considered an application by the respondent husband and certain other respondents to object to the breadth and relevance of two subpoenas issued by the applicant wife. The subpoenas were directed to Westpac Banking Corporation and L & Co., Accountants, seeking various financial records relating to the husband and several associated companies and a settlement. The wife sought the release of the subpoenaed material for inspection by her and her professional advisors.

The primary legal issue before the court was whether the subpoenas were overly broad and irrelevant, constituting an improper use for discovery, or whether they were sufficiently particularised and relevant to the proceedings. The husband argued that the documents were not described with sufficient particularity, making it impossible for the wife to demonstrate their relevance, and that discovery had already occurred between the parties. The wife contended that the documents sought were relevant to determining the pool of assets available for distribution and to complex issues arising under sections 90AE(2) and 90AE(3) of the Family Law Act 1975.

Guest J dismissed the husband's application, finding that the objections failed to properly understand established legal principles regarding subpoenas. The court applied the principles from *National Employers Mutual General Insurance Association Ltd v Waind* and *Hatton v Attorney General of the Commonwealth of Australia*, which distinguish between using a subpoena for discovery and requiring production of documents described in particular or general terms that do not necessitate the recipient making a judgment about relevance. The court held that the subpoena to L & Co. was not oppressive, as the accountant was not required to form a judgment on relevance, and that the apparent relevance of the records was clear, particularly given the husband's concession of interests in the named entities. The court noted that the proceedings involved complex property applications and potential orders under Part VIIIAA of the Act, making the husband's dealings with the entities, as recorded by his accountant, relevant to the determination of asset pools and financial resources.

Consequently, Guest J ordered that all documents produced pursuant to the subpoenas be released to and made available for inspection by the wife and her professional advisors, with leave granted for them to take copies. The husband's oral application was dismissed, and all costs of the application were reserved for determination at the substantive trial. The court also certified that the matter reasonably required the attendance of counsel, including Senior Counsel.