Kingley and Arndale
[2008] FMCAfam 600
•15 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KINGLEY & ARNDALE | [2008] FMCAfam 600 |
| FAMILY LAW – Subpoenas – legal profession privilege – abuse of process and privilege. |
| Family Law Act 1975, ss.60B; 60CA; 60CC; 60CG; 61B; 61DA; 64B; 65DAB; Evidence Act 1995 (Cth) ss.119; 133 |
| Mandic v Phillis (2005) FCA 1279 Botany Bay Instrumentation & Control Pty Ltd v Stewart (1984) 3 NSWLR 98 Marcel v Commissioner of Police (1991) 2 WLR 1129 British American Tobacco Australia Service Ltd v Cowell (representing the Estate of McCabe (deceased) (2002) VSC 112 |
| Applicant: | MR KINGLEY |
| Respondent: | MS ARNDALE |
| Intervener: | PRICE & ROOBOTTOM |
| File Number: | BRC 1363 of 2008 |
| Judgment of: | Purdon Sully FM |
| Hearing date: | 20 March 2008 |
| Date of Last Submission: | 20 March 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 15 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms McMillan SC |
| Solicitors for the Applicant: | Jones Mitchell Lawyers |
| Counsel for the Respondent: | Mr Baston |
| Solicitors for the Respondent: | Hopgood Ganim Lawyers |
| Counsel for the Second Respondent: | Mr Kissick |
| Solicitors for the Second Respondent: | Price & Roobottom |
ORDERS
That on or before 19 May 2008 the Father file and serve an affidavit deposing to the following:-
(a)a response to the matters deposed to in Part B3 of the Mother’s affidavit filed 18 March 2008;
(b)whether he holds a current Australian Driver’s Licence, and if so any restrictions or conditions imposed thereon;
(c)the details of his attendances at any ATODS program including the dates of such attendances and the nature of any counselling undertaken;
(d)the proposed transportation arrangements for the child [X] born [in] 2006 if the interim parenting orders sought by the Father in his Application for Interim Orders filed 14 February 2008 are made by this court.
That on or before 30 May 2008, a Partner or duly authorised employee of Price & Roobottom Lawyers file and serve an affidavit detailing:-
(a)those documents in their possession limited to files containing the Father’s traffic history and charges relating to driving under the influence; and
(b)the evidence in support of the claim for privilege including the purpose and use or intended use for which those documents were brought into existence.
That the parties have liberty to apply if the filing of the affidavit by the Father pursuant to Order 1 does not resolve the issue of the information the Mother had sought from Price & Roobottom Lawyers, and that at any such Court appearance all parties be at liberty to appear by telephone.
That if the issue of the claim of privilege in respect of the Price and Roobottom Lawyers’ files remains unresolved, then a hearing date be allocated before Federal Magistrate Jarrett to enable the deponent of any affidavit to be cross examined by the parties and for a ruling on the said claim of privilege.
That for the purposes of the interim parenting orders only, the subpoena issued by the mother to Telstra be limited to the production of the phone records for the time period of 23 January 2008 to
28 January 2008 inclusive.
That unless otherwise ordered, neither party is to disseminate information in any documents produced, including in relation to the information contained in any affidavit of the Father, other than for the purpose of conducting these proceedings.
That leave is given for the Price & Roobottom Lawyers file produced to the Court in relation to the subpoena directed to it to be released to Price & Roobottom Lawyers to enable it to comply with Order 2 herein.
That leave be granted to the Mother to issue any further subpoena to the Queensland Police in relation to the Father’s traffic history and the QP9 document.
IT IS NOTED that publication of this judgment under the pseudonym Kingley & Arndale is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 1363 of 2008
| MR KINGLEY |
Applicant
And
| MS ARNDALE |
Respondent
REASONS FOR JUDGMENT
Ex tempore
Introduction
The applicants, Mr Kingley (“the father”) and Price & Roobottom, a law firm (“PR”) seek orders setting aside two subpoenas issued at the request of the respondent, Ms Arndale (“the mother”) directing PR and Telstra to produce certain documents to this Court. The application is opposed by the mother.
The subpoenas were issued on 11 March 2008 The basis of the father and PR’s application to set aside the subpoena to PR is, in broad terms, that it is an abuse of process and oppressive and that the documents sought from PR are privileged, which privilege has not been waived.[1] The father also says that the subpoena to Telstra is an abuse of process and oppressive.
[1] Paras 3.3.2.2, 3.3.1 and 3.6.5 of Written Submissions of father’s Senior Counsel
The mother says that the documents sought are relevant to the issues before the court, that they do not amount to an abuse of process, that they were issued properly before an interim hearing and that if an objection is to be taken on the basis of privilege then it should be on oath to enable it to be properly assessed.
Background Facts
In terms of the background facts, there are factual issues in dispute. I have however accepted and taken into account the following uncontested facts.
The father is a [occupation omitted] and aged 48. He lives on a property at [W].
The mother is 39.
There is one child of the relationship, [X] (“the child”), aged 15 months. The child lives with the mother and her three (3) children from an earlier marriage on a property at [G].
The parties never married. There appears to be a dispute about the length of the relationship. On either party’s version it was of short duration.[2]
[2] Mother says they commenced a live in relationship in February 2004 (paras.18 & 30 of her affidavit filed 18 March 2008). Father says it was January 2005 (para.4 of his affidavit filed 14 February 2008)
The parties separated in August 2006 and the child was born about four (4) months later.
The father has been spending time with the child at various venues but largely supervised by the mother.
The parties effected a property settlement following some litigation in the Supreme Court. The terms of that settlement appear to be in the process of being effected.
There are mutual allegations of domestic violence and there appear to be proceedings relating to domestic violence issues.[3]
[3] Para.44 of Father’s affidavit ibid
The father served a period of time in gaol in 2004 for a drink driving offence. He says that his probation expired in March 2007. He has since been charged with another drink driving offence and proceedings relating to that charge seem to be current. The father says he is attending an ATODS Back in Control program which is an alcohol, tobacco and drug service. He is also attending a Gold Coast Traffic Offenders’ Program.
By application filed in this Court on 14 February 2008, the father seeks parenting orders on a final and interim basis in respect of the child. A first return date was given for 20 March 2008. A Response document was filed by the mother on 18 March 2008.
On any reasonable view of the material before the Court the parties’ relationship appears to have been volatile and dysfunctional and there is continuing high conflict.
The parties reached some interim agreements on 18 March 2008 until the matter could come back before me for further interim determination on 20 June 2008. Those agreements related to some supervised time between the father and the child and the preparation of a report by a psychiatrist.
The issues before the court for further interim determination appear to be, if I can broadly categorise them, whether an order for sole parental responsibility should be made in favour of the mother, the amount of time the father spends with the child and on what terms - that it is whether it continue to supervised, how changeover is to be effected, the preparation of a family report, and the participation by the father in certain counselling and rehabilitative programs as may be nominated by the family report writer, the making of a non-denigration and non-molestation orders, the consumption by the father of alcohol and drugs and his smoking, ongoing drug testing of the father and paternity testing.
Both the mother and father issued subpoena before the first return date. In addition to the two (2) subpoena that are sought to be set aside, the father issued a subpoena to [W] Family Daycare and the mother to The Queensland Commissioner of Police and the [P] Clinic.
The Evidence
I have read and considered all of the material I have been asked to read including the relevant subpoena.
I have also had the benefit of and considered the oral submissions of Counsel for the parties and PR. I have also considered the written submissions of the father’s Senior Counsel together with the cases referred to me by her.[4]
[4]Mandic v Phillis (2005) FCA 1279 was not referred to in oral or written submissions.
I do not propose in my reasons to respond to every submission made by Counsel. I have however in reaching my decision considered all of the submissions before me.
Legal principles applicable to setting aside subpoena
This Court has jurisdiction, on application, to set aside all or part of a properly constituted subpoena.[5] It can do so in a variety of circumstances, including on the grounds sought by the father and PR.[6]
[5] Order 15.18 Federal Magistrates Court Rules 2001
[6] See Waind v Hill (1978) 1 NSWLR 372; Subpoena Law and Practice in Australia , Carter, Gerard B (1996) Blackstone Press Pty Ltd at pages 89 et el
The subpoena in question were issued in the course of the parties parenting proceedings. I accept that they are properly constituted and that PR and the father each have standing to seek to set aside the subpoena.[7] I also accept that a person who seeks to set aside a subpoena has the right to appear by Counsel.[8]
[7] Botany Bay Instrumentation & Control Pty Ltd v Stewart (1984) 3 NSWLR 98; Marcel v Commissioner of Police (1991) 2 WLR 1129; Compsyd Pty Ltd v Streamline Travel Service Pty Ltd (1987) 10 NSWLR 648
[8] Senior v Holdsworth; Ex parte Independent News Ltd (1976) 1 QB 23 at 33; Christie v Ford (1957) 2 FLR 202 at 204
The issuing of a subpoena may constitute an abuse of process[9] where:
a)It has not been served bona fide for the purpose of obtaining relevant evidence and is fishing.[10] The father contends that the mother may be seeking information from PR and Telstra for use in domestic violence proceedings or threatened defamation proceedings or for the purpose of discrediting the father or financial non-disclosure in relation to litigation in another Court or the father’s drink driving charge. He contends that a real prejudice may result to him if the documents are produced.
b)It is too wide and it is being used as a substitute for discovery and fishing.[11] The father and PR submit that the documents the subject of the subpoena to PR call for PR to make a judgment about what documents are relevant and need to be produced.
[9] See Subpoena Law and Practice in Australia ibid pages 91- 97
[10] Botany Bay Instrumentation & Control Pty Ltd v Stewart (1984) 3 NSWLR 98
[11] Commissioner for Railways v Small (1938) 38 SASR 564 (used as a substitute for discovery); Hatton v Attorney General of Commonwealth of Australia & Ors (2000) FLC 93-038 National Employer’s Mutual General Assoc Ltd v Waind and Hill (1978) 1 NSWLR 377
A subpoena can be set aside if the documents sought are not relevant to the proceedings and the evidence before the Court in the filed affidavit material[12] and if the documents are privileged and that there has been no waiver of that privilege. [13]
[12] Epstein v Epstein (1993) FLC 92-384
[13] See Subpoena Law and Practice in Australia ibid pages 105 - 188
Division 1 of Part 3.10 of the Evidence Act 1995 (Cth) deals with a number of privileges that allow a party to proceedings to refuse to disclose certain confidential communications and documents. Objection must be taken by the client or the lawyer acting for the client. The privileges include client legal communications prepared for the dominant purpose of a lawyer providing legal advice. “Dominant” has been held to mean “a ruling, prevailing or most influential purpose”.[14] A primary or substantial purpose may not be sufficient to attract the privilege. A distinction has also been drawn between lawyer-client communications that are for the dominant purpose of giving or receiving advice and those that are for an ancillary purpose. [15] Client privilege may be lost in certain circumstances.[16]
[14] see Esso Australian Resources Ltd v FCT (1999) 201 CLR 49 The High Court in Baker v Campbell (1983) 153 CLR 52 and Esso Australia Ltd v Commissioner of Taxation (1999) 201 CLR 49 replaced the sole purpose test in Grant v Downs with the dominant purpose test.
[15] see Z v New South Wales Crime Commission (2007) HCA 7; s133 of Evidence Act; Subpoena Law and Practice in Australia ibid pages 118-120
[16] ss121-126 Evidence Act 1995 (Cth); also Goldberg v Ng (1995) 185 CLR 83 and Mann v Carnell (1999) HCA 0006; Subpoena Law and Practice in Australia ibid at pp186-188
In accordance with s.133 of the Evidence Act if an objection is made in relation to the production of documents on the basis of privilege then the Court may order that the document or documents be produced to it and may inspect the document for the purpose of determining the question. [17] Whether a Court will utilise this provision will depend on the circumstances of each case.[18]
[17] see Esso Australian Resources Ltd v FCT (1999) 201 CLR 49 at 52 per Gleeson CJ, Gaudron and Gummow JJ
[18] see Uniform Evidence Act, S. Odgers , at 1.3.14280, page 616; Singapore Airlines v Sydney Airports Corporation (2004) NSWSC 380 at 66
Interrogatories and discovery are not allowed in relation to proceedings in the Federal Magistrates Court unless the Federal Magistrates Court or a Federal Magistrate declares that it is appropriate in the interests of the administration of justice to allow the interrogatories or discovery. In deciding whether to make a declaration, the Federal Magistrates Court or a Federal Magistrate must have regard to whether allowing the discovery or interrogatories would be likely to contribute to the fair and expeditious conduct of the proceedings, and any other matters that the Court thinks relevant.[19]
[19] Section 45 Federal Magistrates Court Act 1999
The Federal Magistrates Court Rules 2001 also contain provisions that permit a Court to order a party to a proceeding to produce to it a document in the possession, custody or control of the party. Where production or inspection of the document is resisted on the basis of privilege or other ground then the Court may inspect the document to assess the validity of the objection. [20]
[20] Rules 14.04 and 14.05
Legal principles applicable to interim parenting proceedings
The principles governing the court’s determination in a parenting matter are set out in the Family Law Act 1975 (“the Act”). Section 65D of the Act, subject to s.61DA (“the presumption of equal shared parental responsibility”) and s.65DAB (“parenting plans”), gives the court power to make a “parenting order”. A “parenting order” is defined by s.64B of the Act.
In deciding whether to make a particular parenting order, s.60CA requires the Court to have regard to the best interests of the child as its paramount consideration.
In determining what is in the best interests of the child the Court must consider the matters set out in s.60CC(2), the “primary considerations”, and s.60CC(3), the “additional considerations”.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, family neglect or family violence.
There are 13 “additional considerations” set out in s.60CC(3). Those additional considerations include the parties’ attitude to parenting, the promotion of the children’s relationship with the other parent and lifestyle factors, if I can refer to them as such.
The Court must also consider the extent to which each person has fulfilled his or her parental responsibilities (sub-ss.4 and 4A). It must also ensure that any order that is made is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interest being treated as paramount (s.60CG).
The Court must also be guided by s.60B which sets out the objects of Part VII of the Act and the principles underlying it.
The Court is also required under s.61DA(1) when making a parenting order to apply a presumption that it is in the best interests of children for their parents to have equal shared parental responsibility. That presumption relates solely to the allocation of parental responsibility and not the amount of time that they spend with the parents. “Parental responsibility” has the meaning given by s.61B of the Act, namely in relation to a child, all the duties, powers and responsibilities and authority, which by law parents have in relation to a child.
The decision in Goode v Goode (2006) FLC 93-286 outlines the pathway for the conduct of interim proceedings in parenting matters.[21]
[21] see paras.81and 82 at page 80,903-904
Certain provisions of the Evidence Act 1995 do not apply to child-related proceedings. Part 3.10 of the Evidence Act 1995 which deals with privilege is not, however, excluded.
The Issues
This matter is listed to come before me for an interim determination on 20 June 2008. Both parties material raise issues to do with the parties’ personal deficiencies, dysfunction and ongoing conflict.
The mother raises, inter alia, issues of domestic violence which include an alleged assault of her by the father in the presence of the child, anger management problems on the part of the father, the father’s driving record and his history of alcohol and substance abuse.
The father raises, inter alia, issues of domestic violence which include an incident of alleged assault of him by the mother in the presence of the child and the mother’s attempts to use information otherwise than for a legitimate purpose, he says to damage his reputation. He also raises her unwillingness to promote his relationship with the child.
All of these issues are relevant to interlocutory parenting proceedings.
The father does not seek an interim order for parental responsibility. The mother, however, seeks a sole parental responsibility order by way of interim order.
The presumption of equal parental responsibility is triggered whenever the Court is called upon to make a parenting order. The presumption does not, however, apply in circumstances as set out in the Act. In interlocutory proceedings a Court can make or refuse to make a parental responsibility order.
If both parents’ evidence is accepted then the domestic violence incidents deposed to by them would be capable of satisfying the definition of family violence in the Act and rebut the presumption. Similarly if the mother’s evidence is accepted in relation to the father’s alcohol and drug habits and driving record, or if the father was likely in the near future to be further incarcerated, then that may impact upon what parenting orders should be made in the child’s best interests, including the Court’s consideration of what parental decision making order, if any, should be made in the child’s best interests.
In relation to the father’s transportation of the child the mother says that she has unsuccessfully sought to obtain relevant information from the father relating to current motor vehicle licensing restrictions and information to do with his current drink driving charge. Her concern is that he may have breached a release condition thus rendering him open to a further period of imprisonment and/or that he may not have a current licence. She says he has driven as an unlicensed driver in the past and that he has driven a motor vehicle since his latest drink driving charge. She particularises all of this in her affidavit.
The father says that during his unsupervised time with the child he will live at his property at [omitted] near [W], and that he will take the child to visit his mother at [omitted] and his father at [omitted] on the Sunshine Coast. He says that that is about a three (3) to three and one half (3½) hour drive from [W]. The mother says longer.[22] His affidavit is silent on who will transport the child on these occasions given that on his proposal his first period of unsupervised time will commence after a short initial introduction at a contact centre graduating about two (2) months later to one day of overnight time each week.[23] He proposes that when he spends time with the child at a contact centre that the mother will do the transportation.[24] It is not unreasonable to assume that it is intended that thereafter he will be responsible for the child’s transportation because if that was not to be the case then he would or should have deposed to proposed alternative arrangements in his affidavit.
[22] Paras.32, 38, 39 of father’s affidavit
[23] see Para.4 of father’s application filed 14 February 2008
[24] Para.36 of father’s affidavit
The father’s family lawyers, Jones Mitchell, conceded in their correspondence to Hopgood Ganim dated 27 February 2008, that the drink driving proceedings are relevant to the parenting proceedings. They informed the mother’s lawyers that they were not however acting in that matter and that they would inform the mother of any outcome of those proceedings. It appears on the material, however, that there was to be no outcome before 29 May 2008, a date at that time which post-dated the first return date of the father’s parenting application but predates now when I am to determine the matter.
Having asked for the information which the father conceded as being relevant through his lawyers, and having been rebuffed, and having outlined the other unsuccessful steps she took to get the information the mother was left with little alternative, it seems to me, but to seek information before 20 March 2008 when the matter was to come before this Court for hearing on the father’s interim application, to seek that from PR, the lawyers the husband identified in his own affidavit as acting for him in relation to his drink driving charge.
PR Subpoena
In relation to the PR subpoena, if I can deal with that firstly and apply the law that I have previously outlined to the circumstances of this case and the issues before the Court on the parenting proceedings,
Ms McMillan SC for the father submitted that the subpoena should be set because it is oppressive, a substitute for discovery, too wide and fishing and it seeks documents that are not relevant to interim proceedings and that they are otherwise privileged.
Mr Kissick for PR objected to the subpoena on the basis that it was unnecessary, fishing, too wide and therefore oppressive in that the mother seeks files other than the files relating to the current drink driving charge and the documents sought are not relevant, and are a substitute for discovery. He also says that the documents sought are privileged. There was also an objection to conduct money.
The father counters that the mother should have sought this information through the normal process of discovery and in any event her subpoena to the police and to the [P] Clinic would provide her with the information she needed for the interim hearing both in terms of his traffic record and generally.
However, as I indicated earlier, there is no process for discovery in this court without leave and I also indicted earlier, at the commencement of my reasons, the basis upon which the mother said that the documents are relevant to the issues before the court, that they did not amount to an abuse of process, that they were issued properly before an interim hearing and that if there was to be an objection based on privilege then it needed to be made on oath so that it could be properly assessed.
The records from the Queensland Police will reveal a person’s criminal history, namely Court convictions for offences prosecuted in Queensland. A subpoena, if directed to the Queensland Police, will also reveal any traffic convictions if that is sought. Unlike other Australian States, they will not, however, reveal criminal or traffic charges on foot or charges that have been dismissed.
Ms Kissick submitted that a Court Brief QP9 document which containing a summary of the facts in relation to a summary charge would also be available to the mother under subpoena to the Queensland Police if she sought it without her having to seek files from PR. I accept that that is likely to be the case. When I had a look at the subpoena to the Queensland Police it did not seem to be directed to the QP document, as I understand what that document is, although I stand to be corrected in that regard, but that seemed to be the case.
Whilst the father’s medical records may reveal matters to do with the father’s health including his alleged alcohol and substance abuse and anger management problems, it is unlikely to reveal documents relating to his driving record and any current licence restrictions and it may not reveal matters relating to his current drink driving charge.
I find that the father’s driving record, any current licence restrictions, and matters to do with any drink driving history, including the current drink driving charge are clearly matters that are relevant to the interlocutory orders sought by the parties, and to the legal principles a Court is required to apply in determining what orders to make in the best interests of the child.
It is relevant to the father’s ability to transport the child during the unsupervised periods of time he seeks on an interim basis. It is relevant to the issue of time generally, particularly given the tender age of this child, the fact that the father recognises that graduated time is appropriate and the mother’s concerns about a possibility of the father being again gaoled as a consequence of his recent drink driving charge which he deposes to in his affidavit filed in support of his application.
It is also relevant, in my view, to the issue of parental responsibility, drug testing and the parameters of any family report that may be ordered by the Court and these are all matters that the Court is seized with on 20 June 2008.
Whilst it may be the case that some of this information could have been obtained by additional subpoena to the Queensland Police or a broadening of the documents sought in the subpoena to the Police before the court, and that is certainly a matter that the mother’s solicitors can respond to by issuing further subpoena, the father’s obligation is to disclose relevant information. That is a fundamental and primary obligation. When the mother sought information about the father’s current drink driving charge, it should have been provided. Mr Kissick appeared to concede that a drink driving charge may be relevant to parenting proceedings but his complaint was that the subpoena was too wide and the material privileged. I will deal with that objection shortly.
The point is that a lot of time and money has been spent on this matter, unnecessarily in my view. The issuing of subpoena and the need for three counsel to appear before me may have been circumvented had the father simply instructed his matrimonial lawyers to provide the information, which information the mother originally sought from him, properly, in my view. Disclosure by both parties is an ongoing obligation. It is not meant to be information provided on the drip feed.
The father’s evidence in his sworn material relating to his current drink driving charge is sparse. If his concern was that in releasing that information the mother would use it inappropriately then that could have been dealt with by way of undertakings or Court order when the matter was last before the Court. That is a matter separate from his obligation to place relevant material before this Court. The parties had, after all, previously provided to the other, it seems to me from looking at the material, a whole raft of undertakings to cover real or perceived concerns that they each had with respect to the other.
If the father felt that a further undertaking was necessary to meet his specific concerns that were not covered by the other undertakings given then he should have sought extended or additional undertakings.
Turing now to the terms of the subpoena to PR. Under the subpoena PR are required to produce “all files” relating to “criminal charges and related proceedings” involving the father. It details a time period, namely, from the first date of instructions to the date of the subpoena. It then defines the criminal and related proceedings to include, but not be limited to, charges and/or convictions relating to driving under the influence, traffic offences and other offences involving assault.
The subpoena, whilst referring to the particular categories of complaint raised by the mother in her evidence, also seeks the production of files relating to other criminal charges and related proceedings. There is no evidence that the father has been charged with or convicted of offences other than traffic violations and drink driving or that PR has acted for him in relation to any other charges or offences.
The wife’s material appears to refer to Nyst Lawyers acting for the father on one drink driving charge. There is no evidence that he has been convicted of assault or that the mother pursued her complaint to the police on the basis that the father assaulted her at [location omitted], or that PR acted for the father in that regard. There are no convictions for assault in the subpoenaed material from the police.
The subpoena is, in my view, too widely drafted and should be limited in its terms to PR producing files relating to any drink driving and traffic charges and offences. Production, limited to those files, in my view, could not be viewed as an abuse of the Court’s process or a fishing expedition as they are being sought for a legitimate forensic purpose.
Nor in my view would the provision of those documents, save for the reference to “all other documentation” in the list of particular documents as further defined, be viewed as oppressive in the sense of being “seriously and unfairly burdensome” to PR, or required PR to make a judgment as to what documents relate to what issues between the parties in a proceeding to which it is not a party.[25]
[25] Waind v Hill ( at 381-2)
I will come back to that in a minute. In relation to the submission that the mother should properly have sought discovery in the usual course, the information sought by the mother was relevant to interlocutory proceedings as I have previously indicated and I find, whilst the dicta to which I was referred in Hatton v Attorney-General properly outlines the procedure to be adopted in relation to pre-trial discovery and inspection of documents in the possession of a third party in the Family Court of Australia, there was no opportunity for the mother, under this Court’s procedure to obtain formal discovery from the father between the filing of the father’s application and the first return date, a period of some five (5) weeks, without the mother first seeking a declaration from this Court that it was appropriate in the interests of the administration of justice for that particular disclosure to take place.[26]
[26] see Rules 14.02 and 14.06 of the Federal Magistrates Court Rules2001
Given the exigencies and the nature of interim proceedings which do not provide the opportunity to test evidence by cross examination it is usual practice in this Court for subpoenas to issue before interim hearings to place before the court any relevant and/or corroborative information on disputed facts. In this case I take into account that the mother sought information from the father before she issued the subpoena and the information she sought was relevant to the parenting proceedings, and was recognised by the father’s matrimonial lawyers as being such and that he did not provide it.
Nor do I accept that the mother should have first sought an authority to PR to obtain the information. Given that the father did not, through Jones Mitchell, provide the information, why would the mother assume that the father would provide an authority to PR to provide the same information. I have already noted, however, that the subpoena to PR, as issued by her, is too wide for the reasons that I have mentioned.
Turning now to the objection on the basis of privilege, there is no affidavit evidence before me sworn by a lawyer from PR, or by the father, or both to prove that the communications in the files are confidential and that they were created for the dominant purpose of providing legal advice in anticipation of litigation. The privilege applies only to litigation taking place or reasonably apprehended. Now I accept that it may be that some of the documents on files may be privileged, and it appears from Mr Kissick’s submissions that some file, a 2003 file, has been provided to the mother. However there has been no cross examination by the mother on the issue, nor has the Court had the benefit of examining the material to rule on the claim by PR. Counsel for the mother submits that this was the proper course to enable me to properly assess the claim of privilege and I agree with that.
Ms McMillan and Mr Kissick both submitted that the Court is able to look at this matter without an affidavit, and on the face of the actual subpoena, it is submitted that I can draw the conclusion that the documents sought in the subpoena would have been prepared for the dominant purpose of providing legal advice in litigation and that I don’t need evidence of that. However I do not agree with that proposition. Whilst that argument may be open in respect of, “court documentation” in paragraph (a) of the subpoena, I am unable to assess the “dominant purpose” test in respect of the documents listed in paragraphs (b) to (f) inclusive of the subpoena without some evidence on oath, and possibly some limited cross examination.
The basis upon which I reach this conclusion is as follows.
The “litigation privilege” for which s.119 of the Evidence Act provides attaches to confidential communications made, or the contents of a confidential document prepared, “for the dominant purpose of the client being provided with professional legal services relating to an Australian …proceedings or an anticipated or pending Australian…proceeding, in which the client is or may be… a party.”
In assessing any claim for privilege the timing of the dominant purpose and the anticipated proceedings should be considered with respect to the documents sought.[27] Further, the circumstances in which any external advice is sought and its disclosure, and whether privilege has been waived or not may also be relevant.[28] That assessment is usually done after consideration of evidence on oath.
[27] Australian Wheat Board Ltd v Honourable Terrence Rhoderic Cole (no 5) (2006) FCA 1234
[28] See for example, Australian Wheat Board Ltd v Honourable Terrence Rhoderic Cole (no 5) (2006) FCA 1234 and British American Tobacco Australia Service Ltd v Cowell (representing the Estate of McCabe (deceased) (2002) VSC 112.
Ms McMillan and Mr Kissick further submit that there is no waiver of the professional privilege on the face of the filed material or any allegation of it. Certainly the mother did not contend otherwise. However, again, without sworn evidence from the father or from relevant personnel of PR, I am unable to assess that.
Conclusion in relation to subpoena to PR
I find, firstly, that the subpoena to PR is too widely drafted and should be limited to the production of files relating to drink driving and traffic offences only.
I am unable however to assess the claim of legal professional privilege in relation to that category of documents without evidence before me on oath, properly tested, and inspection if necessary of particular documents. There is no application before me under Rule 15.03 of Federal Magistrates Court Rules 2001. That does not preclude this Court from making such an order. The father could call for the documents from PR, save for those that are the property of PR. He could also be ordered to produce to the mother or to this Court any documents in his possession or control relating to his attendance at ATODS together with any statements provided by him to the police arising out of the alleged hotel assault of him or of the mother. The Court would then be able to assess objections, if any, are made including the dissemination of documents, if any, ordered to be produced to the mother.
Having considered all of the various options before me and the permutations and combinations available to me and the fact that this matter is to come before me in four (4) weeks’ time, and given the costs to the parties associated with the various process options I propose the following course with respect to the PR subpoena:
ORDERS DELIVERED
Now, having made those orders it would be my hope that on the filing of the father’s affidavit by way of reply, limited to the matters I have ordered, that it will be unnecessary to further involve PR, and that my order that they file the affidavit I have referred to will be unnecessary. I propose to give liberty to apply in that regard if that in fact eventuates so that I can then discharge the order to PR and in that regard I give everyone leave to appear by telephone. Does everyone understand that?
If the matter vis a vis PR proceeds and it is necessary for them to file the affidavit I have ordered then I intend to list this matter to do with the claim for legal professional privilege in relation to those particular files before Jarrett FM. I do not have a date but I will get a date if I am required to get a date – to enable the deponent of any affidavit to be cross examined, if required, by the mother and the father.
It is proper, in my view, that another Federal Magistrate hear the matter in the event that inspection of documents is required in respect of which privilege is claimed, and a ruling needed on the question of privilege given that the matter is in my docket, and I will hear the parenting matter, certainly on an interim basis if it does not resolve before 20 June, and on a final basis if it does not resolve. So does everybody understand that part of it?
Telstra Subpoena
As to the Telstra subpoena, the father’s objections appear to be based on the grounds that, firstly, the records sought do not relate simply to the mother and father but to third parties; secondly, that they span a period of two years, and are therefore not only not relevant, but too wide and oppressive; thirdly, the mother is fishing, possibly in relation to the domestic violence proceedings, or for some other purpose and finally, the mother has not first sought disclosure from the father of his telephone records because there is no evidence that he has a Telstra line.
Mr Baston, for the mother, submits, that firstly, it is up to Telstra to say if the subpoena is oppressive or not; secondly, that the documents are relevant as the father complains in his affidavit filed in support of the orders sought in interim proceedings that the mother’s behaviour during previous Court proceedings was destructive, and that she harassed him with as many as ten (10) text and voice mail messages each day, [29] whereas the mother’s evidence is that the communication between the parties at this time was regular and frequent, a “two way street” so to speak, by telephone, voice mail and text mail and that the telephone records will reveal that; and thirdly, that to ask Telstra to limit the subpoena as requested by the father would be oppressive and that I must look at oppression in the context of the particular case. He says that to limit the inquiry would in fact require Telstra to engage in an onerous exercise and that rather than requiring them to “push a button” so to speak to get a print out, it would requite Telstra to isolate the information.
[29] Para 33 father’s affidavit filed 14 February 2008
In relation to the last submission, there is no evidence before me to assess whether Telstra are not able to provide discrete information for a particular phone number in a particular time period. It may be that Telstra has the technology to do so and that such a request would not be an onerous exercise for it. I am not entitled to assume they cannot do so without that evidence before me.
The father is entitled to challenge the subpoena. Rule 15.18 of the Rules provides that “on application the Court may make an order setting aside all or part of a subpoena”. The Rules therefore do not limit the bringing of an application to the person subpoenaed to produce the document.
The question for me really is whether the information sought by the mother is relevant and likely determinant of an issue/s at an interlocutory stage. That is, is the production of documents showing phone calls made, and received, the duration of those calls, the origin by reference to suburb and region and copies of any short message service text message between two telephone numbers, including the content, time sent and received, all for a period since separation spanning some 18 months, likely to assist the Court with regard to the issues requiring interim determination. Those issues are as detailed by me earlier in my reasons.
In my view, save for one matter to which I will refer, the subpoena is too wide and the documents of limited, if any, relevance for the following reasons.
The father raises in his affidavit the mother’s conduct and his belief that she is unwilling to promote his relationship with the child. That is a relevant additional consideration under s.60CC of the Act, including at an interim stage. In support of his submissions that the subpoena to Telstra should not be set aside, Mr Baston referred me to paragraph 33 of the father’s affidavit wherein the father refers to the mother’s alleged harassment of him by sending numerous text and voicemail messages. He appears to relate this to a point in time, namely during their property proceedings in another Court.
He then outlines his belief that the mother is unwilling to promote the child’s relationship with him. He refers, inter alia, to her alleged “threats” to take the child away from him and his confidence that she will carry through with that. He annexes a transcript of a phone message he had with the mother on 28 January 2008, Annexure “H” to the father’s affidavit. In that transcription the father says that the mother told him, and I am summarising here, in essence that she disagreed with his lifestyle choices for which reason she did not want him around her children, including the child, and that she was not going to spend any more time with him as in her view he was a poor role model.
The mother does admit that she left a message for the father on
28 January 2008. She questions however the accuracy of the father’s transcript. She does not, however, say what part of the transcription she questions however she outlines in her affidavit the events leading up to that message, including her facilitation of the child spending time with the father. She seeks to put that message in context by reference to certain events prior to that which relates to the father spending time with the child, including, messages from the father to her on
26 January, 2008, her text message that day by way of reply and the father’s alleged subsequent abusive messages by phone, voice mail and text to her on 26 and 27 January 2008 which then led to her text to the father on 28 January 2008.
In my view given that the father has placed this evidence before the court in interim proceedings in support of, what I find to be, a relevant consideration under the Act and given that the mother takes some issue, albeit not particularised, with the transcription, she is entitled to seek production of that and place that evidence before the court. She is also entitled to place before the court documents that will put that evidence in context.
It may be that this evidence will or will not, once I have heard argument on 20 June 2008, significantly advance matters. However, the mother is not opposing the father spending time with the child. She says that she wants some protections in place to ensure the child is safe. On balance I believe it would create an injustice to the mother not to allow the subpoena to issue in respect of the telecommunications between the parents limited to the period between 23 January and
28 January 2008.
The balance of the documents sought, spanning as they do a significant period of time, have as I have said no discernable relevance to the interlocutory proceedings. The mother says they will show that the father was also in contact with her during the period he complains of her alleged harassment of him during past Court proceedings. The making and receiving of telephone messages will not necessarily disprove the father’s claims, albeit I accept that voicemail and text messages may be some evidence of the pattern of communication between the parties. However that is not likely to assist in interlocutory parenting proceedings other than to show a dysfunctional relationship. That the parties have a dysfunctional relationship appears an uncontested fact. There are also already some 60-odd pages of transcripts of phone calls and messages annexed to the mother’s material.
Conclusion in relation to subpoena to Telstra
I propose to set aside the period of time in the subpoena and limit that to the period 26 January 2008 to 28 January 2008 inclusive.
I do not propose to order the production of the text messages referred to in Annexure “H” as being received by the father on 24 January 2008 given that the mother admits sending those messages but not the date for one of the messages.
ORDERS DELIVERED
Given the orders I propose to make, it is accordingly unnecessary for me to consider the objections of the father to the subpoena. I should, however, say that the question of relevance is one of fact. The parties have consented to a psychiatric evaluation. That report is not before the Court. The mother is also seeking the preparation of a family report. It may be that production of further telecommunication records will become relevant with the progressive collection of information and at a final hearing. So I am making it clear that I am making a ruling on Telstra documents are relevant to me in the context of the proceedings on 20 June.
As I have indicated, if further information becomes available it may well be that further records are relevant and then we can deal with that at that time.
Orders
I invite the parties to provide to me a short minute of orders giving effect to my reasons at a time convenient to them.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Purdon-Sully FM
Associate:
Date: 13 June 2008
at 56
2
11
2