Kehoe & Seden (No 2)
[2022] FedCFamC1F 346
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kehoe & Seden (No 2) [2022] FedCFamC1F 346
File number(s): SYC 7833 of 2018 Judgment of: HARPER J Date of judgment: 17 May 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Where Applicant Wife issued two subpoenas – Where both subpoenaed recipients filed Notice of Objection – Where husband makes submissions in support of objections – Party issuing impugned subpoena must demonstrate that documents sought have “apparent relevance” to issue in proceedings – Relationship between “apparent relevance” and “legitimate forensic purpose” –
Where the third parties contend that the impugned paragraphs in subpoenas constitute an abuse of process and have no apparent relevance to issues in proceedings – Where there is a large group of corporations and trusts – Apparent relevance to interests of discretionary objects – Subpoena must not be too vague or oppressive – Impermissible to require recipient to form a view as to what must be produced in compliance – Where several paragraphs in subpoena require recipient to interrogate witness as to which documents relied upon in an affidavit – Objection to one subpoena to be dismissed – Orders for specific paragraphs of the schedule to the second subpoena to be set aside.Legislation: Family Law Act1975 (Cth) Pt VIII, ss 79, 106B Cases cited: A v Z (2007) 212 FLR 255; [2007] NSWSC 899
Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905
Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98
Commissioner for Railways v Small (1938) 38 SR NSW 564
D v Australian Financial Security Authority [2017] NSWCA 50
Dovgan & Dovgan [2021] FamCA 306
Kerr & Christie [2021] FedCFamC1F 313
Loulach Developments Pty Ltd v Roads and Maritime Services (No 2) [2018] NSWSC 1465
Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303
McMillan Incorporated v Bishopgate Investment Trust (1993) 4 All ER 998
Mulley & Marney v Manifold (1959) 103 CLR 341; [1959] HCA 23
Portal Software International Ltd v Bodsworth [2005] NSWSC 1115
R v Ridgeway (1998) 72 SASR 73; [1998] SASC 6963
Re Force Corp Pty Ltd (in liq) [2018] NSWSC 896
Read v Chang (2010) 44 Fam LR 198; [2010] FamCA 876
Rigby v Kingston (No 4) [2021] FamCA 501
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Seden & Kehoe [2020] FamCAFC 294
Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52
T & D [2006] FamCA 1560
Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90
Unitingcare – Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476; [2011] FamCAFC 159
Woodcock & Woodcock (2021) 64 Fam LR 489; [2021] FedCFamC1F 88
Division: Division 1 First Instance Number of paragraphs: 56 Date of last submission/s: 16 March 2022 Date of hearing: 21 March 2022 Place: Sydney Counsel for the Applicant: Mr Kearney SC Solicitor for the Applicant: Pearson Emerson Family Lawyers Counsel for the First Respondent: Mr Muddle SC Solicitor for the First Respondent: Coleman Greig Lawyers The Second Respondent: No appearance required Counsel for the subpoenaed parties: Mr Brereton SC and Mr May Solicitor for the subpoenaed parties: Broun Abrahams Burreket ORDERS
SYC 7833 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KEHOE
Applicant
AND: MR SEDEN
First Respondent
MS G SEDEN
Second Respondent
MR K SEDEN
First Intervener
DD PTY LTD
Second Intervener
ORDER MADE BY:
HARPER J
DATE OF ORDER:
17 MAY 2022
THE COURT ORDERS THAT:
1.The Notice of Objection filed on 22 November 2021 in respect of the subpoena issued to Mr K Seden on 20 October 2021 be dismissed.
2.In respect of the subpoena issued to the Proper Officer, DD Pty on 20 October 2021:
(a)Paragraphs 13, 14, and 16 be set aside;
(b)The Notice of Objection filed 22 November 2021 be 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).
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 pseudonym Kehoe & Seden has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
These are complex financial proceedings between the Applicant Wife, Ms Kehoe (“the wife”) and First Respondent Husband Mr Seden (“the husband”). The wife commenced proceedings in December 2018 seeking an alteration of property interests and spousal maintenance pursuant to the Family Law Act1975 (Cth) (“the Act”).
The wife seeks property adjustment orders pursuant to Part VIII of the Act. Specifically, by her Second Further Amended Initiating Application filed on 29 March 2021, the wife seeks an order pursuant to s 106B of the Act setting aside a loan deed and mortgage to P Pty Ltd on about 8 January 2020 in respect of a property in Suburb E, a payment from the husband of $3,200,000 (Order 2), a sale of the Suburb E property in the event of a default in payment, various procedural or mechanical orders, and in particular, Order 7 which is in the following terms:
7. If the husband fails to comply with Order 2 within 28 days, the husband shall give such notice in writing (if any) as is necessary to the [Seden Family Board, both personally and on behalf of the [H Seden Family Testamentary Trust] (“the Trust”) as a 'leaving person' in accordance with clause 11 of the [Seden Family Group Rules] and/or as a Selling Interest Holder in accordance with clause 15 of the [Seden Family Group Rules], and thereafter do all acts and things necessary to:
7.1. realise his interest and that of the Trust in the [Seden Family Group]; and,
7.2. forthwith upon receipt cause such moneys as are received upon such realisation by the husband and/or the Trust to be paid to the wife in satisfaction of the husband’s obligation pursuant to Order 2 herein.
According to the wife, relevantly, the material property interests comprise a unit at Suburb E, with net equity of $1.4 million held by the husband, the husband’s interest in a business said to be of negligible value, and the husband’s interest in a group of companies called the Seden Family Group (“the Seden Group”). It is the wife’s claims in respect of these latter interests in particular, which raise factual and legal issues of some complexity.
The wife has also filed and served Points of Claim on 3 May 2021. It is unnecessary to canvass these in great detail. They make clear that a central issue in the proceedings is the nature, extent, and value of the husband’s interests and entitlements in and to, and the benefits which have been previously received, or will be receivable in the future by the husband from the H Seden Family Testamentary Trust (“the Testamentary Trust”) and the Estate of the late Mr F Seden and the Seden Group, which includes the Testamentary Trust.
The Seden Group is comprised of a number of entities. The relationship and the relations between those entities are governed, in part at least, by the Seden Family Group Rules (“the Group Rules”) dated 20 January 2014.
P Pty Ltd is a company within the Seden Group. The wife alleges that the husband provided a personal guarantee of a P Pty Ltd credit facility with ANZ Banking Group Limited. According to the Group Rules, “Family Interests” specifies the husband owns 200 of 1200 ordinary shares on issue in P Pty Ltd.
There have been judgments in this Court and the Full Court on appeal in which comment has been made that there are financial resources available to the husband within the Seden Group, and that there can be no doubt that the husband’s interest in the Testamentary Trust “involved something more than an expectation of benevolence on the part of his mother and brothers”.[1]
[1] Wife’s written submissions filed on 7 February 2022, paragraph 9, citing Seden & Kehoe [2020] FamCAFC 294 at [49].
On 29 October 2021, the wife issued two subpoenas, one to Mr K Seden and the other to DD Pty Ltd.
On 22 November 2021, both recipients filed a Notice of Objection. I will refer to the recipients as “the third parties” in this judgment.
Procedural orders were made on 24 November 2021 for the filing and service of case outlines, affidavits, and written submissions by dates in February and March 2022. The subpoena argument was listed for hearing on 21 March 2022.
The third parties had the same representation for the hearing of their objections, and made submissions which covered both subpoenas, and particular submissions directed to individual paragraphs of the schedule to each subpoena separately.
The husband adopted the submissions of the third parties and made submissions in support of the objections, although he filed no Notice of Objection himself.
LEGAL PRINCIPLES
The principles applicable to setting aside a subpoena were comprehensively stated by McClelland J (as he then was) in Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905 at [25]–[42] (“Baumann”). McClelland J pointed out the party issuing an impugned subpoena must demonstrate the documents sought have “apparent relevance” to an issue in the proceedings, although, unlike discovery, it is not enough for a party seeking to uphold a subpoena to show that the documents might lead to “a train of inquiry” which might assist his or her case: at [31] citing McMillan Incorporated v Bishopgate Investment Trust (1993) 4 All ER 998 at 1005; Mulley & Marney v Manifold (1959) 103 CLR 341 at 345; T & D [2006] FamCA 1560 at [6]. It is not legitimate to issue a subpoena on the basis of “an outside chance” that something useful might turn up in the documents (at [33] citing R v Ridgeway (1998) 72 SASR 73 at 101) or to issue a “fishing” subpoena with a view to determining whether the issuing party has a case at all (at [35] citing Unitingcare – Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476 at 85,856; see also Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100 per Powell J).
The third parties contend generally that the impugned paragraphs constitute an abuse of process and have no apparent relevance to the issues raised in the proceedings, as disclosed by the wife’s pleadings in their current form.
The contention that a subpoena is an abuse of process usually rests on the underlying assertion that it has no “legitimate forensic purpose”, for example, because it is “fishing”. The question of apparent relevance in turn often, if not usually, underpins debates about legitimate forensic purpose and allegations of “fishing”. The primary contention of the third parties was that the documents sought in the impugned paragraphs lacked any apparent relevance to the issues in the proceedings.
The concept of “apparent relevance” in relation to subpoenas is of long standing. In Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at 103, Beaumont J used the expression in posing the question of whether the material sough has “apparent relevance to the issues in the principle proceedings”. Numerous later cases have adopted the same or similar phraseology: Portal Software International Ltd v Bodsworth [2005] NSWSC 1115 at [20]–[24]; Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320 at [12]; Baumann at [32] and [82] (“on the cards”); D v Australian Financial Security Authority [2017] NSWCA 50 at [56] (“sufficient apparent connection”). Re Force Corp Pty Ltd (in liq) [2018] NSWSC 896 at [22] and [24] explained “apparent relevance” as meaning something could “reasonably be expected” to “throw light” on some of the issues in the proceedings (see most recently in this Court Woodcock & Woodcock (2021) 64 Fam LR 489 at [48] (“Woodcock”).
The indeterminate boundaries of these verbal formulations are obvious, but it is recognised they have a wide embrace and often include documents about which the issuing party cannot have clear knowledge as to content or actual relevance. Recently, in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 in the NSW Court of Appeal, Bell P (as he then was) observed at [57] that the apparent relevance of documents is “one of the reasons why medical and telephone records, for example, are frequently the subject of subpoenas, even though it will not be known or knowable ex ante whether or not the subpoenaed material, will, or is likely to, assist the party issuing the subpoena”. He held that to insist on such an added requirement is artificial because it would require an issuing party to be able to predict the contents of potentially relevant documents and would “unduly constrain the ability of litigants to investigate the facts”, citing the decision of Brereton J in A v Z (2007) 212 FLR 255 at 257. Therefore, so long as a subpoena can plausibly be seen to relate to an issue in the proceedings (or to “cast light” on such an issue), and the subpoena is not in other respects too vague or oppressive, it should not be set aside.
Bell P pointed out the close connection between “apparent relevance” and a proper forensic purpose at [65]:
It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are “apparently relevant” or, to use the words of Nicholas J in [ICAP Pty Ltd v Moebes [2009] NSWSC 306] at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist. Of course, if it can be shown that the material assistance will be to the party that issued the subpoena, the prospect of the forensic purpose of the issuing party being impugned as illegitimate will be virtually non-existent.
Bell P also pointed out that even an inability to demonstrate it is “on the cards” that documents will materially assist a party’s case, will not necessarily result in a subpoena being set aside. He continued:
80. My review of the authorities in relation to the setting aside of subpoenas and/or the refusal to permit access to documents produced leads me to the conclusion that, although a party will generally be able to demonstrate that it had a legitimate forensic purpose in issuing a subpoena where, to quote Simpson J (as her Honour then was, and with whom Spigelman CJ and Studdert J agreed) in [R v Saleam [1999] NSWCCA 86] at [11], it can:
(i) identify a legitimate forensic purpose for which access is sought; and
(ii) establish that it is ‘on the cards’ that the documents will materially assist his case,
at least in civil matters, an inability to demonstrate that it is “on the cards” that the documents sought will materially assist the subpoenaing party’s case will not automatically require either that the subpoena be set aside or that access to the documents produced be refused. It will generally be sufficient and prima facie evidence of a legitimate forensic purpose if the documents sought to be produced on subpoena have an apparent relevance to the issues in the case and or bear upon the cross examination of witnesses expected to be called in the proceedings.
At a general level, the wife contends the impugned material has apparent relevance to the exercise of the Court’s discretion pursuant to s 79 of the Act, and to the identification of the assets, liabilities, and financial resources of the parties, according to ordinary legal and equitable principles: Stanford & Stanford (2012) 247 CLR 108. While the husband accepts that his interests in the Seden Group are, broadly speaking, financial resources, the wife argues that those interests are his property, comprising 1/6 of the Seden Group, and entitle him to significant income and benefits which he can realise. The wife, who bears the onus of establishing apparent relevance, contends in her case outline filed on 17 March 2022 that each subpoena seeks documents apparently relevant to the following issues raised in the proceedings:
4.1 the nature, extent and value of the husband’s interests and entitlements in, and to a series of entities in and comprising the [Seden Family Group], including those arising in and consequent upon the Estate of the husband’s late father;
4.2 the husband’s entitlement and capacity to access and/or realise, whether in whole or part, any interests and entitlements in the [Seden Family Group];
4.3 the benefits which have been provided to (and withheld from) the husband from the [Seden Family Group] at and following separation, including the amount and terms of the same;
4.4 the husband’s liabilities and financial contributions to the interests of the [Seden Family Group], including the meeting by the husband of expenses in relation to the same;
4.5 the disposition by the husband of his business to the Group, and in particular [P Pty Ltd];
4.6 the asserted indebtedness of the husband to each of the [Seden Family Group] and to the second respondent, and the terms of and circumstances in which the same has arisen and been dealt with;
4.7 the husband’s contentions as to the scope, basis and cost of the valuation evidence (if any) necessary in the proceedings, including particularly in relation to interests and entitlements in the [Seden Family Group]; and,
4.8 the ability of the husband to comply with his obligations of disclosure in the proceedings, including but not limited to his ability to comply with serial orders directed to the husband in respect of the same.
The Seden Subpoena
In relation to the Seden subpoena, objection is maintained to paragraphs 2, 3, 4, 6, and 8 of the schedule. Those paragraphs are in the following terms:
2. Copies of all minutes of meetings and resolutions of the [Seden Family Board] from 1 July 2016 to the current date.
3. Copies of all trustee minutes and resolutions of the [Q Seden Family Trust] from 1 July 2016 to the current date.
4. Copies of all company minutes and resolutions of [P Pty Ltd] from 1 July 2016 to the current date.
…
6. Copies of all valuations in respect of real property and/or trading entities/businesses owned by the below named entities:
(a) [Q Seden Family Trust];
(b) [Z Pty Ltd];
(c) [P Pty Ltd];
(d) [EE Trust]; and
(e) [EE2 Trust];
(f) [EE3 Trust];
(g) [H Seden Family Testamentary Trust];
(h) [FF Pty Ltd];
(i) [Business BB];
(j) [GG Limited];
(k) [HH Pty Ltd];
(l) [KK Trust];
(m) [JJ Pty Ltd];
(n) [LL Trust];
(o) [MM Trust]; and
(p) [NN Trust].
which are dated from 1 January 2020 to the current date.
…
8. In relation to the Last Will of [Mr F Seden] dated 13 January 2014 copies of all:
(a) letters of wishes;
(b) memoranda of wishes;
(c) explanatory memorandum;
(d) statements of intention; and/or
(e) documents outlining his instructions and wishes;
made by [Mr F Seden] for the attention of his executors, the original trustees of the [H Seden Family Testamentary Trust] and/or [Mr Seden].
Mr K Seden seeks orders that these paragraphs be set aside.
Paragraph 2 of the Seden Subpoena seeks production of the minutes of meetings and resolutions of the Seden Family Board from 1 July 2016 to date. There was no dispute that the husband has never been, and is not eligible to be, a member of the Seden Family Board. The third parties argue in those circumstances that it is not apparent what relevance these documents could have to the issues in the proceedings. They focus on the fact that the wife seeks, in her Second Further Amended Initiating Application, an order that the husband exercise certain rights under clauses 11 and 15 of the Seden Family Group Rules, and contend that minutes of meeting and resolutions of the Seden Family Board from 1 July 2016 have no bearing on whether the husband can and should be compelled to exercise whatever rights he may have under clauses 11 and 15 of the Seden Family Group Rules.
That submission may be correct as far as it goes, but it is too narrow. In my view, board minutes and resolutions as far back as July 2016 clearly have apparent relevance to the issues of the extent to which entities and assets in the Seden Group should be considered to be financial resources of the husband, the nature and extent of interests and entitlements in, and to, a series of entities in and comprising the Seden Family Group, and benefits which have been provided to (and withheld from) the husband by the Seden Family Group. These are but several clear examples of the issues to which paragraph 2 of the schedule has apparent relevance.
Paragraph 3 seeks trustee minutes and resolutions of the Q Seden Family Trust from 1 July 2016 to date. The third parties argue the husband is not, and has never been, an appointor of the Q Seden Family Trust, a trustee of the Q Seden Family Trust, a director of the corporate trustee, or a shareholder of the corporate trustee. They accept the husband is one of a large number of discretionary objects of the Trust, and therefore enjoys an equitable chose in action in the Q Seden Family Trust comprised of his right to due consideration and administration of the trust. They argue there is “no complaint that the husband has not received due consideration or that there has been maladministration of the trust”. In those circumstances, they deny any apparent relevance in “over half a decade of historical minutes and resolutions of the Q Seden Family Trust”.
I reject this argument for the same reasons given in relation to paragraph 2. The very fact that that the husband enjoys the acknowledged equitable chose in action as a discretionary object supports the apparent relevance of paragraph 3. The chose in action is property of the husband and may be capable of value, or form a financial resource of the husband. The exercise of the trustee’s discretion in relation to trust assets of a number of years has apparent relevance to the value of chose in action and the extent to which it is not only property of the husband, but also a financial resource: see Dovgan & Dovgan [2021] FamCA 306 at [299]–[300] and Woodcock at [78] and [79].
Paragraph 4 seeks copies of all company minutes and resolution of P Pty Ltd from 1 July 2016 to date. The third parties argue that the only relevance of P Pty Ltd is as the entity in favour of which the husband granted a mortgage secured over the Suburb E property for a line of credit in favour of the Seden Family Group. Consequently, paragraph 4 should be limited to documents relevant to that dealing.
But again, the focus is too narrow. In addition to the mortgage over the Suburb E property, the wife relies upon the contention that the husband continues to have a 1/16 share of various Seden Group properties and revenues, including holiday residences owned by P Pty Ltd. These issues form a part of the wider question of the assets and financial resources of the husband. For those reasons, the documents sought in paragraph 4 have apparent relevance.
The same considerations apply to the documents sought in paragraph 6, which are valuations in respect of real property and/or trading entities/businesses owned by a number of entities, including the Q Seden Family Trust, the H Seden Family Testamentary Trust and P Pty Ltd, from 1 January 2020 to date.
The third parties argue that the wife has not adduced any evidence to establish the relevance of these valuations. They point out that some of the entities in respect of which valuations are sought, such as the KK Trust, LL Trust, MM Trust, and the NN Trust, do not feature in the wife’s outline of submissions on relevance, and the husband does not control the Mr Seden Family Trust. The husband is only one of two appointors and one of two directors of the corporate trustee, J Pty Ltd. Moreover, the Mr Seden Family Trust is bound by the Seden Family Group Rules and the Seden Family Board, of which Mr Seden is not and cannot be a member.
I do not accept these arguments. Even if all these contentions are accepted for the purposes of argument, the apparent relevance of the valuations again clearly relates to the assets and financial resources of the husband, and in particular, the value of his equitable choses in action as property in the interrelated discretionary trusts.
Paragraph 8 seeks documents in relation to the Last Will of the husband’s father, Mr F Seden, dated 13 January 2014. These include any letters of wishes, memoranda of wishes or other documents outlining his instructions or wishes for the attention of his executors, the original trustees of the H Seden Family Testamentary Trust and/or Mr Seden. The third parties argue that the relevance of such documents could only be established if they had influenced previous decisions of the trustee, relying upon Read v Chang (2010) 44 Fam LR 198 at [16] (“Read”). In Read, the memorandum of wishes related to a discretionary trust established by the wife’s grandfather. The Court held the document was relevant to the future, as well, in particular, to the possibility of future distributions to the wife, and it was essential for the Court to have as much information as possible about the wife’s future prospects, in light of the vast financial resources from which she may benefit (at [31]). Broadly speaking, that is also the nature of the relevance of paragraph 8 in these proceedings.
I will dismiss the objections to the Seden Subpoena.
The DD Pty Ltd Subpoena
DD Pty Ltd Partners are accountants for the husband, the Testamentary Trust and the Seden Group.
A partner of DD Pty Ltd Partners, Mr V, has sworn an affidavit in the husband’s case concerning the interests and entitlements of the husband in the Testamentary Trust, the Q Seden Family Trust, the Seden Group, and P Pty Ltd. Another partner of DD Pty Ltd Partners, Mr PP, has also sworn an affidavit concerning the materials or evidence needed for a valuation, such as financial statements and records for the Seden Group and the Q Seden Family Trust. A senior manager of DD Pty Ltd Partners, Ms T, has sworn an affidavit in the husband’s case, which also relates to valuation.
In relation to the DD Pty Ltd subpoena, objection is maintained to paragraphs 2–6, 9, 13–16, and 18 of the schedule. Those paragraphs are in the following terms:
2. Copies of income tax returns and financial statements for the financial years ending 30 June 2019 and 30 June 2020 for each of:
(a) [P Pty Ltd];
(b) [EE Trust];
(c) [EE2 Trust];
(d) [EE3 Trust];
(e) [Q Seden Family Trust];
(f) [GG Limited];
(g) [HH Pty Ltd];
(h) [KK Trust];
(i) [JJ Pty Ltd];
(j) [LL Trust];
(k) [MM Trust]; and
(l) [NN Trust]
3. Copies of management accounts, draft and final financial statements and income tax returns for the period 1 July 2020 to 30 June 2021 for each of:
(a) [Seden Family Testamentary Trust];
(b) [P Pty Ltd];
(c) [EE Trust];
(d) [EE2 Trust];
(e) [EE3 Trust];
(f) [Q Seden Family Trust];
(g) [Business BB];
(h) [GG Limited;
(i) [HH Pty Ltd];
(j) [KK Trust];
(k) [JJ Pty Ltd];
(l) [LL Trust];
(m) [MM Trust]; and
(n) [NN Trust].
4. Copies of all minutes of meetings and resolutions of the [Seden Family Board] from 1 July 2016 to the current date.
5. Copies of all trustee minutes and resolutions of the [Q Seden Family Trust] from 1 July 2016 to the current date.
6. Copies of all company minutes and resolutions of [P Pty Ltd] from 1 July 2016 to the current date.
…
9. Copies of all valuations held on file in respect of real property and/or trading entities/businesses owned by the below named entities:
(a) [Q Seden Family Trust];
(b) [Z Pty Ltd];
(c) [P Pty Ltd];
(d) [EE Trust]; and
(e) [EE2 Trust];
(f) [EE3 Trust];
(g) [H Seden Family Testamentary Trust];
(h) [FF Pty Ltd];
(i) [Business BB];
(j) [GG Limited];
(k) [HH Pty Ltd];
(l) [KK Trust];
(m) [JJ Pty Ltd];
(n) [LL Trust];
(o) [MM Trust]; and
(p) [NN Trust].
which are dated from 1 January 2020 to the current date.
…
13. Copies of all documents relied upon by [Ms T] for the provision of her opinions expressed in paragraphs 8, 9 and 10 of her affidavit filed 30 September 2021 in Federal Circuit and Family Court of Australia proceedings no. SYC 7833/2018.
14. A copy all file notes and other writings of communications/conversations between [Mr PP] and other members of staff at [DD Pty Ltd] Partners identifying the nature of the [Seden Family Group] in terms of the individual entities and/in broad terms, and the interests that it holds, as referred to in paragraph 7 of [Mr PP's] affidavit filed 30 September 2021 in Federal Circuit and Family Court proceedings no. SYC 7833/2018.
15. A copy of the [Seden Family Group] and [Q Seden Family Trust] financials for year ended 30 June 2021 reviewed by [Mr PP], as referred to in paragraph 11 of the affidavit of [Mr PP[ filed 30 September 2021 in Federal Circuit and Family Court of Australia proceedings number SYC 7833/2018.
16. A copy of all information and documents the subject of [Mr PP's] review for the purpose of expressing his opinions contained in paragraphs 12 and 14 of the affidavit of [Mr PP] filed 30 September 2021 in Federal Circuit and Family Court proceedings number SYC7833/2018.
…
18. Copies of all written instructions and file notes of all relevant oral instructions to [Ms T] and [Mr PP] in relation to their affidavits, filed 30 September 2021, in connection with Federal Circuit and Family Court proceedings number SYC7833/2018.
Paragraph 2 specifies, in summary, copies of income tax returns and financial statements for two financials years ending 30 June 2019 and 30 June 2020, for a number of entities in the Seden Group, including P Pty Ltd and the Q Seden Family Trust. Paragraph 3 specifies management accounts, draft and final financial statements, and income tax returns for the period 1 July 2020 to 30 June 2021 for the same entities and trust, together with the H Seden Family Testamentary Trust and Business BB.
The third parties argue such documents have no apparent relevance. I disagree, for the same reasons that paragraph 6 of the Seden Subpoena have apparent relevance: see [29]–[31] above.
Paragraphs 4–6 seek minutes and resolutions from 1 July 2016 to date of the Seden Family Board, the Q Seden Family Trust and P Pty Ltd. For the same reasons given above at [23]–[28], the apparent relevance is established.
Paragraph 9 specifies valuations held on file in respect of real property and/or trading entities or businesses from 1 January 2020 to date, owned by the same entities specified in paragraph 3 together with Z Pty Ltd and J Pty Ltd. In challenging the apparent relevance of these documents, the third parties rely upon the same reasons given for challenging paragraphs 2, 3, 4, and 6 of the Seden Subpoena. I reject this argument for the same reasons given above at [23]–[31].
Paragraph 13 seeks “copies of all documents relied upon by Ms T for the provision of her opinions expressed in paragraphs 8, 9 and 10 of her affidavit filed 30 September 2021” in these proceedings. The specified paragraphs of the affidavit set out evidence of Ms T’s knowledge, based on instructions from the husband and other members of the ‘Seden family’, supporting her opinion of what documentation she considers would be required in order to value the various interests in the Seden Group, and the time and costs involved in doing so.
The third parties argue the documents have no apparent relevance. I accept this argument. Paragraphs 8, 9, and 10 of Ms T’s affidavit express an opinion about the categories of documents necessary to form another opinion about valuation. While documents relied upon to form a valuation opinion may well have apparent relevance, the wife did not explain how the documents Ms T relied upon to work out what she needed for a valuation bore any meaningful relationship to the issues in the proceedings.
The third parties also challenge paragraph 13 on the basis that it is vaguely or oppressively worded, in the sense that the qualifying descriptor “relied upon” requires the recipient, in order to comply with the subpoena, to interrogate Ms T, as the deponent of the affidavit, about what she relied upon, and then search for those documents. I accept this is not permissible: Commissioner for Railways v Small (1938) 38 SR NSW 564 at 573; Loulach Developments Pty Ltd v Roads and Maritime Services (No 2) [2018] NSWSC 1465 at [5] and [9]–[14].
Paragraph 13 will be set aside.
Paragraph 14 seeks a copy of all file notes and other writings of communications/conversations between Mr PP and other members of staff at DD Pty Ltd Partners “identifying the nature of the Seden Family Group in terms of the individual entities and/in broad terms, and the interests that it holds”, as referred to in paragraph 7 of Mr PP’s affidavit filed on 30 September 2021.
The third parties contend this paragraph is “hopelessly oppressive and vague” with no temporal limit, and requiring a search by the recipient for all documents in its possession or control. I accept this argument. The wording “identifying the nature of the [Seden Family Group]…in broad terms” highlights the imprecise nature of what is sought, requiring the recipient to form a view about compliance.
Paragraph 14 will be set aside.
The third parties challenge paragraph 15 for the same reasons they challenge paragraph 13, that is, it requires a search for vaguely described documents. I do not agree. Paragraph 15 identifies specific documents limited to the financial year ended 30 June 2021.
Paragraph 16 is challenged for the same reasons as paragraph 13. I accept it should be set aside for the same reasons.
The third parties seek to set aside paragraph 18 on the basis that it seeks clearly privileged communications. I do not agree with a submission in these broad terms. While it is possible that some documents falling within paragraph 18 may attract privilege, some may not. The appropriate way to deal with any claims for privilege is for the documents to be produced, subject to the claim for privilege, and kept in a sealed envelope until the claim is determined either by agreement or adjudication.
It is convenient to deal at this point with the general arguments made by the husband in his written submissions. He contended that the trusts and entities which the wife characterises as the “Seden Group” do not, in truth, form a group at all, and the wife has been “unable even to articulate a connection between the 16 companies, trust and trading names and her claim, much less so, to the level of minutiae sought by the subpoenas”. He argued that whether or not the husband has “property in any of these ‘entities’ must be assessed on an entity-by-entity basis” citing the decision of Carew J in Rigby v Kingston (No 4) [2021] FamCA 501 (“Rigby”) at [32]. Therefore, apparent relevance was not established.
I do not accept this argument for several reasons. First, in Rigby Carew J was not addressing the question of apparent relevance in relation to a subpoena. Rather her Honour was determining, on a final basis, a number of discrete factual questions concerning property interests separately as part of a final hearing, and for the purpose of ultimately of assisting the parties to resolve their property dispute. In my view, the decision in Rigby is concerned with a different question to the question of apparent relevance before me.
Secondly, the issues raised by the wife (see above at [20]) do not limit the apparent relevance inquiry as to whether the husband has property in any of the entities. The apparent relevance of the material sought is defined, for example, by the nature, extent, and value of the husband’s interests, including any equitable chose in action as a discretionary object, and entitlements in the various entities and his capacity to access such entitlements. In my view, the reasoning of Wilson J in Woodcock, to which the husband also referred, is entirely consistent with this view of apparent relevance. I note also that the decision in Kerr & Christie [2021] FedCFamC1F 313, upon which the husband relied, involved a very different factual matrix and is distinguishable for that reason.
Thirdly, even if an entity-by-entity assessment is required, as the husband argues, this of itself supports the apparent relevance of the documents sought, because they have apparent relevance to such an assessment.
Fourthly, the husband puts in issue whether the identified entities form a group in any sense. The wife bears the onus of establishing this as a factual, or series of factual propositions. The existence of the Group Rules makes her contention prima facie plausible, at least for the purpose of assessing apparent relevance. It seems to me the subpoenaed material has apparent relevance, therefore, to the resolution of this issue.
For the foregoing reasons, I will make the orders set out at the commencement of this judgment.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 17 May 2022
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