Jepson & Jepson (No 3)
[2023] FedCFamC1F 493
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jepson & Jepson (No 3) [2023] FedCFamC1F 493
File number(s): SYC 2100 of 2016 Judgment of: MCCLELLAND DCJ Date of judgment: 8 June 2023 Catchwords: FAMILY LAW – PROPERTY – Objections to subpoenas – Where two subpoenas issued to solicitors are unreasonably broad and lack particularity – Objections upheld – Where subpoena issued to New South Wales Police Force is in respect to a live issue in the proceedings – Objection dismissed. Division: Division 1 First Instance Number of paragraphs: 6 Date of hearing: 8 June 2023 Place: Sydney Counsel for the Applicant: Mr Todd Solicitor for the Applicant: Powe & White Family Lawyers First Respondent: Litigant in person Solicitor for the Second Respondent: Mr Allsop, Allsop Glover Lawyers Third Respondent: No appearance ORDERS
SYC 2100 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR JEPSON
Applicant
AND: MS JEPSON
First Respondent
MS B JEPSON
Second Respondent
K PTY LTD
Third Respondent
order made by:
MCCLELLAND DCJ
DATE OF ORDER:
8 JUNE 2023
THE COURT ORDERS THAT:
1.The first respondent’s application for orders as set out in her respective Response to the Application in a Proceeding filed on 6 and 7 June 2023 is stood over until the final hearing on 23 October 2023.
2.The first respondent has liberty to apply, if she wishes, to re-agitate the matters contained in the Responses to an Application in a Proceeding as referred to in order (1) above, upon providing seven (7) days’ notice to the other parties and to the Court.
3.The parties are to provide updated disclosure in respect to documents relevant to the proceedings, to the extent to which they have not already provided the documents and to the extent to which, those documents are in their possession, custody and/or control.
4.In the event of either or both the applicant or second respondent wishing to further press their respective Applications in a Proceedings filed 3 May 2023, they also have liberty to apply on providing seven (7) days’ notice to the Court and the other parties.
5.The objections to subpoena filed by the second respondent on 17 May 2023 to the first respondent’s subpoenas issued to Allsop Glover Lawyers and CC Lawyers on 12 May 2023 are upheld.
6.The objection to subpoena filed by the second respondent on 17 May 2023 to the first respondent’s subpoena issued to the NSW Police Force on 1 May 2023 is dismissed.
7.The costs of today’s proceedings are reserved.
THE COURT NOTES THAT:
A.The first respondent, Ms Jepson objects to the appearance on behalf of the second respondent by Mr Allsop in the proceedings today. Ms Jepson contends that Mr Allsop was in a position of a conflict of interest. Mr Allsop was permitted to appear on behalf of the second respondent for the purpose of the Court’s consideration of the applications today without that issue being considered or determined.
B.Ms Jepson has requested that Ms B Jepson provide a medical certificate indicating that she was medically incapacitated to attend Court today.
C.The request to the Sydney registry made by the husband in relation to access to court files from the Supreme Court of NSW is resolved as a result of correspondence received from the Supreme Court of NSW on 6 June 2023, noting that no materials have been produced.
D.In circumstances where the first respondent has applied for orders as provided the Responses to an Application in a Proceeding filed 6 and 7 June 2023, the other parties have not been afforded procedural fairness and on that basis that the Court will address the applications at the final hearing.
E.In response to an indication from the Court that the Court is prepared to make an order requiring the parties to provide updated disclosure, neither the applicant nor the second respondent do not presently press their respective Application in a Proceedings each filed on 3 May 2023.
F.The Court has not accepted any legitimacy regarding assertions of impropriety of any individual that have been made in the Court.
G.The Court has previously advised the parties and their legal advisors of the very real concerns that the Court has regarding the disproportionality of legal costs being incurred in this matter in the context of the size of the property pool in dispute.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the Jepson & Jepson pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTMCCLELLAND DCJ:
In this matter, Ms Jepson has issued subpoenas to CC Lawyers and Allsop Glover Lawyers, each in the following terms:
1. Copies of all records, notes and writings that show or tend to show all monies deposited into the [CC Trust Account]/Richard Allsop Trust Account including but not limited to:
Copies of Trust Account Statements
Copies of Office account Statements in relation to any and all funds paid into your office account by [Mr Jepson] and or [Ms B Jepson] or any company of which they may have been a Director/Shareholder.
Copies of all Trust Account Statements, Journal entries, transfers.
Copies of all and any receipts issued to [Ms B Jepson] and or [Mr Jepson] or any company or business or trust which they have been a Director/Shareholder.
From there 1st July 2016 to the date of this Subpoena.
(As per the original)
Objections have been filed by Ms B Jepson in respect to each of those subpoenas, contending that they are a fishing expedition and oppressive as a result of being undefined and unreasonably broad. I uphold the objection in respect to the two subpoenas to the lawyers on the basis that, save to a limited extent, the documentation sought is not specified to be in relation to either or both Ms B Jepson or Mr Jepson other than in respect to the penultimate category, being “copies of all and any receipts issued to [Ms B Jepson] and/or [Mr Jepson] or any company or business or trust [of] which they have been a Director/Shareholder”.
The term subpoena itself is a Latin expression meaning ‘subject to penalty.’ In that context, the recipient of a subpoena is entitled to receive notice with sufficient clarity for them to ascertain what is actually required for the subpoena to be satisfied. In circumstances where, other than in the paragraph to which I have referred, there is no reference to the clients being Ms B Jepson and/or Mr Jepson, those subpoenas lack adequate particularity. Insofar as the subpoenas do, in the penultimate category, refer to Ms B Jepson and/or Mr Jepson, they seek receipts provided to those parties in respect to an unidentified class of matters and/or advice that may have been provided by those solicitors, which would necessitate those solicitors reviewing their files at least from the time these proceedings were commenced, being 2016 and, potentially, for an indefinite period of time.
On that basis, and by way of summary, I find that the subpoenas are oppressive, for two reasons. Firstly, that they are expressed in unreasonably broad terms, including in respect to the penultimate paragraph. Secondly, they are oppressive insofar as the amount of time that each firm would be required to devote to seeking the totality of the documents sought would be a considerable expense that exceeds the conduct money that has been provided to them.
The subpoena to the New South Wales Police Force dated 1 May 2023 is, however, in a different category. Both the solicitor representing Ms B Jepson in today’s proceedings and counsel for Mr Jepson candidly confirmed to the Court that the issue of potential misappropriation of Motor Vehicle 1 and Motor Vehicle 2 is a live issue in the proceedings. This includes the allegation that those vehicles were misappropriated by Ms Jepson.
It is unnecessary to determine that issue, which will no doubt be one traversed at final hearing. The mere fact that it is a live issue however, in my mind, justifies Ms Jepson obtaining police records in relation to the allegations made against her that she did misappropriate those motor vehicles and, on that basis, I dismiss the objection to the subpoena that has been issued to the New South Wales Police Force.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 11 August 2023
0
0
0