Jingyi & Chao (No 4)

[2024] FedCFamC1F 395

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Jingyi & Chao (No 4) [2024] FedCFamC1F 395

File number:

SYC 3653 of 2021

Judgment of:

HARPER J

Date of judgment:

29 May 2024

Catchwords:

FAMILY LAW – APPLICATION FOR REVIEW –
EX TEMPORE – Where wife seeking review of registrar’s decision to strike out five subpoenas – Whether wife demonstrated documents sought by subpoenas are of apparent relevance to an issue in proceedings – Where subpoenas are not to be used in place of court discovery processes that have not been exhausted – Orders for specific paragraphs of the schedules to four subpoenas issued to specific banks set aside – Objections to the four subpoenas issued to the banks dismissed – Objection to subpoena issued to non-bank entity upheld.  

Legislation cited:

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:

Kehoe & Seden (No 2) [2022] FedCFamC1F 346

Lucas Industries Ltd v Hewitt (1978) 18 ALR 555

Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

X Pty Ltd & Merhi [2015] FamCA 622

Division:

Division 1 First Instance

Number of paragraphs:

12

Date of hearing:

29 May 2024

Place:

Sydney

Counsel for the Applicant:

Ms Johnston

Solicitor for the Applicant:

JC Legal Practice

Counsel for the Respondents:

Mr Condon SC

Solicitor for the Respondents:

Juris Cor Legal

ORDERS

SYC 3653 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS JINGYI

Applicant

AND:

MR CHAO

First Respondent

MR B CHAO

Second Respondent

C PTY LTD (and another named in the Schedule)

Third Respondent

ORDER MADE BY:	HARPER J
DATE OF ORDER:	29 MAY 2024

THE COURT ORDERS THAT:

1.Subparagraphs 2(a), 2(b), 3(a), 3(b), 4(a) and 4(b) of the schedules to the subpoenas addressed to T Bank, Commonwealth Bank of Australia, Westpac Banking Corporation, and National Australia Bank Limited be set aside, but that in all other respects, the objections to those subpoenas be dismissed.

2.The subpoena issued to U Pty Ltd filed 9 February 2024 be set aside.

3.Orders 1, 2 and 3 made on 24 April 2024 be set aside.

4.The First Respondent Husband have first access to any documents produced in answer to subpoenas addressed to T Bank, Commonwealth Bank of Australia, Westpac Banking Corporation and National Australia Bank, pursuant to subpoenas issued by the applicant on 19 February 2024, with such first access to lapse 14 days from the date of these orders if already produced or after production of those documents in the Registry and there be general access to the parties thereafter.

5.If there are documents which fall within fall outside the schedule of the subpoena, then the husband has leave to put those documents in a separate category in a sealed envelope.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 pseudonym Jingyi & Chao has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

HARPER J:

1. Listed before me today is an Application for Review of orders made by a Judicial Registrar on 24 April 2024 for setting aside five subpoenas, which were subject to Notices of Objection.

2. Those subpoenas are in two categories. Four were issued to the following banks: T Bank, Commonwealth Bank of Australia, Westpac Banking Corporation, and National Australia Bank Limited. The second category holds one subpoena addressed to a company called U Pty Ltd. 

3. The subpoenas were issued by the applicant wife (“the wife”) in property adjustment proceedings. The Application for Review seeks orders that the objections to each of the subpoenas be dismissed. The objections were filed by the respondent husband (“the husband”), who seeks to have the Application for Review dismissed.

4. When the matter was called for hearing, counsel for the wife made clear that the subpoenas were pressed, other than paragraphs 2(a) and (b); 3(a) and (b); and 4(a) and (b) in the schedules to each of these subpoenas addressed to the banks nominated above. The husband maintained his objection and sought to have the Application for Review dismissed. The principles relating to subpoenas and the basis upon which an objection may be upheld, was set out by me in the decision of Kehoe & Seden (No 2) [2022] FedCFamC1F 346 at [13]–[19] (“Kehoe & Seden”). There, I made reference to the decision of the New South Wales Court of Appeal in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (“Blacktown City Council”), in particular, the reasons of Bell P (as he then was).

5. The jurisprudence in this Court also has adopted the position that it is open to the Court to uphold subpoenas, on the basis that the schedules are read down or amended (X Pty Ltd & Merhi [2015] FamCA 622 at [39] (“X Pty Ltd & Merhi”) following Lucas Industries Ltd v Hewitt (1978) 18 ALR 555 at [577]).

6. It is quite clear on the authorities, that the test is apparent relevance. In the Blacktown City Council decision Bell P pointed out that, “at least in civil matters, an inability to demonstrate that it is, ‘on the cards’ that the documents sought will materially assist the subpoena in the party’s case, will not automatically require either that the subpoena be set aside or that access to documents produced be refused” (at [80]).

7. In submissions, the husband pointed out that it is well settled that subpoenas should not, by and large, be utilised to seek production of material in circumstances where the relevant court’s discovery procedures have not been exhausted (X Pty Ltd & Merhi at [38]). This Court has extensively articulated rules concerning the duty of a party to disclose material relevant to the issues in the proceedings and specific duties in relation to financial proceedings, of which this case is an example.

8. The submissions in support of the apparent relevance of the surviving sub-paragraphs of the subpoenas addressed to the banks was sought to be made good by reference to an affidavit of the wife filed on 28 February 2024, which was relied upon before the learned Judicial Registrar.

9. As I pointed out in Kehoe & Seden, the concept of apparent relevance has largely indeterminate boundaries. While it is often the case that the terms of the schedule to a subpoena may be articulated in terms that ultimately capture documents which a party perceives are not relevant or will ultimately play no part in the evidence relied upon at trial, this, in my view, is not a basis upon which to form a view the documents are not apparently relevant. Having regard to the material I was taken to in the affidavit of the wife, I am broadly satisfied that the documents sought in the balance of the schedules of the subpoenas addressed to the banks have apparent relevance, at least at this stage of the proceedings.

10. Accordingly, subparagraphs (a) and (b) of paragraphs 2, 3 and 4 of the schedules to the subpoenas addressed to the banks nominated earlier in these reasons be set aside, but that in all other respects, the objections to those subpoenas be dismissed.

11. The subpoena addressed to U Pty Ltd, in my view, is in a different category. It was undisputed before me that disclosure procedures pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) in relation to that entity do not appear to have been exhausted or explored to any significant extent, or at least to extent which in my view would justify an issuing of a subpoena to that entity at this point in time.

12. Accordingly, I uphold the objection to that subpoena and order that it be set aside.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Harper delivered 29 May 2024.

Associate:

Dated:        7 June 2024

SCHEDULE OF PARTIES

SYC 3653 of 2021
Respondents
Fourth Respondent:	MR TIAN