Jingyi & Chao (No 5)

Case [2024] FedCFamC1F 473

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Jingyi & Chao (No 5) [2024] FedCFamC1F 473

File number: SYC 3653 of 2021
Judgment of: HARPER J
Date of judgment: 16 July 2024
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Where husband issued six subpoenas – Where wife filed Notices of Objections to each subpoena – Where wife contended that subpoenas were excessively broad and did not serve a legitimate forensic purpose – Party issuing impugned subpoena must demonstrate that documents sought have “apparent relevance” to an issue in proceedings – Where subpoena must reasonably particularise the documents it calls for – Where subpoena is impermissibly broad if it requires recipient to make judgments about issues or relevance – Where the subpoenas require a third party to interpret imprecise definitions in order to determine what documents are called for – Consideration of r 6.30 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) requiring service on “any interested person” – No service as required – Objections to the subpoenas upheld and the subpoenas set aside.
Legislation:

 Family Law Act 1975 (Cth) Pt VIIIAB

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.16 and r 6.30

Cases cited:

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

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

Lucas Industries Ltd v Hewitt (1978) 45 FLR 174

McEwan v Rains [2023] QCA 135

Southern Equities Corporation Ltd (in liq); Bond v England (1997) 140 FLR 202

Division: Division 1 First Instance
Number of paragraphs: 47
Date of last submission: 16 November 2023
Date of hearing: On the papers
Place: Sydney
Solicitor for the Applicant: JC Legal
Counsel for the First Respondent: Mr Condon with Mr Southwood
Solicitor for the First Respondent: Juris Cor Legal
Solicitor for the Second, Third and Fourth Respondents: No appearances required

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:

16 JULY 2024

THE COURT ORDERS THAT:

1.The objections to the following subpoenas issued on 23 April 2023 to the nominated recipients be upheld and the identified parts of each subpoena are set aside:

(a)Mr Lozano of V Lawyers (“V Lawyers Subpoena”) as to the whole subpoena;

(b)W Pty Ltd (“W Pty Ltd Subpoena”) as to the whole subpoena;

(c)Mr Y and Mr AA of Z Pty Ltd (“Z Pty Ltd Subpoena”) as to the whole subpoena;

(d)the Commonwealth Bank of Australia (“CBA Subpoena”) as to the whole subpoena;

(e)Mr BB and Mr CC of DD Lawyers (“DD Lawyers Subpoena”) as to the whole subpoena;

(f)Mr EE of FF Pty Ltd (“FF Pty Ltd Subpoena”) as to the whole subpoena.

2.The Registry is…

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AGLC
Jingyi & Chao (No 5) [2024] FedCFamC1F 473
Case
[2024] FedCFamC1F 473
Decision Date

CaseChat Overview and Summary

The case of Jingyi & Chao (No 5) involved Ms Jingyi, the applicant, and Mr Chao, the first respondent, along with two other respondents, Mr B Chao and C Pty Ltd, in a family law matter before the Federal Circuit and Family Court of Australia. The primary dispute centred on six subpoenas issued by Mr Chao on 23 April 2023, which Ms Jingyi challenged by filing Notices of Objections to each one. Ms Jingyi argued that the subpoenas were excessively broad, did not serve a legitimate forensic purpose, and required the recipients to make judgments about issues or relevance, which was impermissible under the law.

The court had to determine whether the subpoenas met the legal standards set out in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Specifically, the court considered whether the party issuing the subpoenas had demonstrated that the documents sought had "apparent relevance" to the issues in the proceedings and whether the subpoenas were reasonably particularised. The court also examined whether the subpoenas required third parties to interpret imprecise definitions to determine what documents were called for, which would render the subpoenas invalid. Furthermore, the court looked at whether the subpoenas complied with r 6.30 of the Rules, which requires service on "any interested person," and found that no such service had been made.

In its judgment, the court found that the subpoenas were indeed excessively broad and did not meet the necessary legal standards. The court held that the subpoenas required the recipients to make judgments about issues or relevance, which was impermissible, and that they did not serve a legitimate forensic purpose. The court also found that the subpoenas were not reasonably particularised and that the requirement for third parties to interpret imprecise definitions was not permissible. The objections to the subpoenas were upheld, and the subpoenas were set aside in their entirety. The court also directed the Registry to destroy any documents already produced in answer to the CBA Subpoena and the W Pty Ltd Subpoena within 28 days of the date of the order.

Orders

Orders of the court

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:

16 JULY 2024

THE COURT ORDERS THAT:

1. The objections to the following subpoenas issued on 23 April 2023 to the nominated recipients be upheld and the identified parts of each subpoena are set aside:

(a) Mr Lozano of V Lawyers (“V Lawyers Subpoena”) as to the whole subpoena;

(b) W Pty Ltd (“W Pty Ltd Subpoena”) as to the whole subpoena;

(c) Mr Y and Mr AA of Z Pty Ltd (“Z Pty Ltd Subpoena”) as to the whole subpoena;

(d) the Commonwealth Bank of Australia (“CBA Subpoena”) as to the whole subpoena;

(e) Mr BB and Mr CC of DD Lawyers (“DD Lawyers Subpoena”) as to the whole subpoena;

(f) Mr EE of FF Pty Ltd (“FF Pty Ltd Subpoena”) as to the whole subpoena.

2. The Registry is directed to destroy any documents already produced in answer to the CBA Subpoena and the W Pty Ltd Subpoena within 28 days of the date of this order.

3. All outstanding applications and objections concerning subpoenas are otherwise dismissed.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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