Langan & Langan
[2013] FCCA 258
•5 April 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LANGAN & LANGAN | [2013] FCCA 258 |
| Catchwords: FAMILY LAW: Objection to subpoena – principles applicable – documents sought held to be an exercise in “trawling.” |
| Legislation: Federal Circuit Court Rules2001, Division 15.3 |
| Cases cited: Australian Gaslight Company v the Australian Competition and Consumer Commission (2003) FCR 317; (2003) ATPR ¶41-966 Behrooz v the Secretary, Department of Immigration and Multicultural and Indigenous Affairs, (2004) 219 CLR 486 Hatton v the Attorney-General (2000) 26 Fam LR 570 National Employers’ Mutual General Insurance Association v Waind & Hill (1978) 1 NSWLR 37 (affirmed (1979) 141 CLR 648) |
| Applicant: | MR LANGAN |
| Respondent: | MS LANGAN |
| File Number: | CAC 700 of 2012 |
| Judgment of: | Judge Neville |
| Hearing date: | By written submissions |
| Date of Last Submission: | 8 March 2013 |
| Delivered at: | Canberra |
| Delivered on: | 5 April 2013 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Ms J Curtis |
| Solicitors for the Applicant: | Dobinson Davey Clifford Simpson |
| Counsel for the Respondent: |
| Solicitors for the Respondent: | Self-represented |
| Independent Children’s Lawyer: | Ms J Lloyd of J. Lloyd & Associates |
ORDERS
The Independent Children’s Lawyer, Ms Lloyd, be granted leave to issue a further Subpoena to the [omitted] in which the Schedule of documents to be produced is specified as follows:
(a)The records and documents held in relation to Ms Langan in respect of uncontentious material over which no objection to access is made for:
(i)Ms Langan’s leave as from 1st January 2012 to present,
(ii)Personnel, leave, investigation files, injury management files, freedom of information files, as have been provided to the Respondent or received from the Respondent.
The Independent Children’s Lawyer issue a subpoena to the Applicant’s employer in the same terms as those outlined in Order 1.
In respect of any material produced under subpoenæ pursuant to Order 1 and 2 that the parties be granted leave to inspect only and not to photocopy.
The Independent Children’s Lawyer should be treated as exempt from any fees associated with the issuing of any subpoenæ in these proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Langan & Langan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 700 of 2012
| MR LANGAN |
Applicant
And
| MS LANGAN |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction
In this parenting matter, there is an objection to a subpoena; the subpoena in question was filed on 30 January 2013 on behalf of the Father. It is directed to the Mother’s place of employment (from which she is currently on leave with no definite date of return). It is in very wide terms both as to the range of documents sought and the period covered by them – July 2005 until February 2013.
The Mother, who is now self-represented, objects to any documents produced under the subpoena being inspected or copied. The objection is based on the grounds of ‘relevance, the utility or advantage to any contested issue or factual matter, and improper purposes ([alleged] spurious purpose to harass the Respondent Mother).’[1]
[1] For the sake of completeness, I note that although the relevant [omitted] produced documents in answer to the subpoena, there was also an objection from Mr W, on its behalf on 4 March 2013. I need only deal primarily with the Mother’s formal objection.
Relevant Principle
For current purposes, it is sufficient to note the following matters of principle.
In Behrooz v the Secretary, Department of Immigration and Multicultural and Indigenous Affairs, witness summonses were issued that required the production of extensive documentary material. The principles articulated in that case, in my view, apply equally to production of documents pursuant to subpoena. In Behrooz, Gleeson CJ said, with customary precision, at [3]:[2]
[2] Behrooz v the Secretary, Department of Immigration and Multicultural and Indigenous Affairs, (2004) 219 CLR 486.
A subpoena must serve a legitimate forensic purpose.
In the same case, Hayne J said, at [180] that the use of such a ‘forensic tool’ to obtain documents cannot be used (emphasis in original):
… to trawl through what was produced in the hope of generating lines of enquiry not otherwise available to support the case which it was sought to make. To decide whether that is so, however, would require a much closer analysis of the categories of documents sought, by reference to a relevant legal issue.
And finally, in the same case, after referring to the breath-taking width of the documents sought, and the imprecision of the summonses issued, Callinan J cautioned, at [224]:
[the seeking of documents] cannot be a mere fishing expedition.
The comments of the High Court in Behrooz, in many respects, reflect those made by the New South Wales Supreme Court of Appeal in National Employers’ Mutual General Insurance Association v Waind & Hill.[3]
[3] National Employers’ Mutual General Insurance Association v Waind & Hill (1978) 1 NSWLR 37 affirmed on appeal (1979) 141 CLR 648.
By way of general principle also, I note that when French J was on the Federal Court of Australia, in Australian Gaslight Company v the Australian Competition and Consumer Commission, his Honour said, at [8], that the test for a subpoena is that there must be some “apparent potential relevance” in relation to the documents sought.[4]
[4] Australian Gaslight Company v the Australian Competition and Consumer Commission (2003) FCR 317; (2003) ATPR ¶41-966.
In a family law context, in Hatton v the Attorney-General, the Full Court adopted in large measure an approach similar to that adopted by French J to which I have just referred.[5] The Court also said that there was a need to look at the apparent relevance of the documents sought, which was by reference to the affidavit material filed in the proceedings.
[5] Hatton v the Attorney-General (2000) 26 Fam LR 570.
Finally, I note in particular the Rules of this Court in Division 15.3, which deal with subpoenæ and notices to produce.
Submissions, Discussion & Resolution
All parties, and the independent children’s lawyer (“the ICL”), provided written submissions. For current purposes, it is sufficient to note the following from the ICL’s submissions, which (in general terms) I gratefully adopt.
First, the ICL noted that the subpoena in question seeks to obtain information in relation to the Mother’s leave from 1 January 2012 until February 2013, including that which was sought and/or that which was obtained. The subpoena also seeks to recover information from her employer concerning conduct issues and/or disciplinary matters or performance management including staff complaints, of or relating to the Mother from 1 July 2005 to February 2013.
Secondly, by notice of objection filed on 7 February, and as earlier observed, the Mother objected to documents being provided or copied on the grounds of relevance, utility or advantage, and also on the basis of improper purposes. In more general terms and in accordance with the more usual terms of legal discourse, I understand that the third ground as advanced by the Mother would be on the basis that the subpoena is oppressive and/or vexatious.
The other matters to which the ICL referred I also gratefully adopt in relation to the duration of the Mother’s employment by [omitted]. And precisely because it is such a recent report by a relevant expert, I also accept the comments from Ms B’s report, which is before the Court, regarding the general well-being of the Mother.
In accordance with the principles to which I have referred in relation to (a) whether a subpoena seeks to undertake an exercise in “trawling” for documents, and (b) whether the terms of the subpoena are too (or breath-takingly) broad or imprecise, in my view, to seek documents that go back to 2005 is oppressive in every respect. The subpoena, in its current terms, seeks documents that can be only of very marginal relevance. Documents of such historical breadth, in my view, fall readily into the category of not satisfying any relevant “forensic purpose.”
In terms, I make orders as proposed by the ICL.
There is one further order that I propose making and that is: I request the ICL, with no fees to attach to the ICL issuing it, that a subpoena in similar terms that applies to the Mother be issued to the employer of the applicant Father for the same period.
The Court so orders.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 24 May 2013
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