LAUER & LINN
[2019] FCCA 1565
•12 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LAUER & LINN | [2019] FCCA 1565 |
| Catchwords: FAMILY LAW – Objection to subpoena – whether the document to be produced may materially assist in cross-examination – whether the document to be produced is an abuse of Court process – orders amended pursuant to Rule 16.05 of the Federal Circuit Court Rules. |
| Legislation: Family Law Act 1975 (Cth) Federal Circuit Court Act 1999 (Cth), s.45 Federal Circuit Court Rules 2001 rr.15A.02, 15A.05, 15A.06, 15A.09 15A.17 |
| Cases cited: Commissioner for Railways v Small (1938) 38 SR(NSW) 564 Waind v Hill and National Employers’ Mutual General Association Ltd [1978] 1 NSWLR 372 Sharpe & Dalton (1990) FLC 92-167 In the Marriage of Epstein and Epstein (1993) 16 Fam LR 588 Carter v Hayes (1994) 61 SASR 541 Hatton v Commonwealth Attorney General & Ors (2000) 26 Fam LR 570 A v Z [2007] NSW SC 899 Elias v Elias [2014] FCCA 457 |
| Applicant: | MR LAUER |
| Respondent: | MS LINN |
| File Number: | SYC 229 of 2016 |
| Judgment of: | Judge Morley |
| Hearing date: | 7 May 2019 |
| Date of Last Submission: | 7 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 12 June 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Nixon of Newnhams Solicitors |
| The Respondent appeared in person | |
| Solicitors for the Independent Children's Lawyer: | Ms Connor of Legal Aid NSW Sydney Central Family Law |
ORDERS
Grant leave to Independent Children’s Lawyer to issue more than 5 subpoenas in this matter.
In relation to subpoena to produce directed to Ms Linn filed 29 August 2018, I strike out from the schedule thereto, paragraphs 4, 5, 6 and 9.
In relation to paragraphs 7 and 8 thereof, I alter the relevant date in each paragraph from 30 June 2013 to 30 June 2015.
In relation to the subpoena to produce directed to Employer filed 29 August 2018, I amend paragraph 2 to read “Copies of all contracts of employment relating to Ms Linn (date of birth … 1978) covering the period 4 January 2014 to the present.”
In relation to paragraph 3, the paragraph is amended to read as follows “Copies of documentation including but not limited to correspondence, file notes, internal memorandum, applications made by Ms Linn relating to reduced hours of work or any amendment to the terms of the employment relating to Ms Linn between 4 January 2014 and the present”.
In relation to the subpoena to produce directed to Employer filed 29 August 2018, I stand compliance with that subpoena over to 17 May 2019.
In relation to the subpoena to produce directed to Ms Linn filed 29 August 2018, I stand compliance with that subpoena over to 4pm on 24 May 2019.
IT IS NOTED that publication of this judgment under the pseudonym Lauer & Linn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 229 of 2016
| MR LAUER |
Applicant
And
| MS LINN |
Respondent
REASONS FOR JUDGMENT
Introduction
On 7 May 2019 I heard an interlocutory matter in the parenting proceedings between Mr Lauer as Applicant father (‘the father’) and Ms Linn as Respondent mother (‘the mother’), being the mother’s objection to a subpoena to produce documents issued by the Court on 29 August 2018 at the request of the father, directed to the mother.
The Court also heard the mother’s objection to a subpoena to produce documents issued by the Court on 29 August 2018 to ‘The Proper Officer, Employer Pty Ltd’.
The proceedings relate to parenting issues between the parties and were commenced by an Initiating Application filed by the father on 18 January 2016.
The mother filed a Response on 30 June 2016. The matter is listed for final hearing before His Honour Judge Monahan on 18, 19 and 20 June 2019.
The parties met in 2011 and in early 2012 commenced a relationship. The parties separated on 15 November 2014.
There is one child of the relationship, [X] born … 2014, aged 5 years and 4 months of age at the time of the interlocutory hearing.
The proceedings concern parenting arrangements for [X].
The Issues
The subject subpoenas were lodged with the Court by Newnhams Solicitors, the solicitors for the father on 29 August 2018 and were issued by the Court that day.
The subpoena addressed to the mother was required to be served by 1 September 2018, and for documents to be produced to the Registry by 11 September 2018.
The schedule to the subpoena required production by the mother of the following:
1. A copy of the subpoena.
2. Copies of all contracts of employment between Ms Linn and Employer Pty Limited.
3. Copies of all documentation, including but not limited to, correspondence, file notes, internal memorandum, applications made by you, relating to your reduced hours of work with Employer Pty Ltd or any amendments to the terms of your employment with Employer Pty Ltd.
4. Copies of any Trust Deed or any order for the appointment as Trustee, or co-Trustee, of any trust for your brother Mr A including but not limited to documents, notes, memoranda, working papers, ledger details in respect to the trust for the financial years ended 30 June 2013 to date.
5. Copies of documents held by you relating to any Trust of which you are an appointor or beneficiary including but not limited to the taxation returns and financial statements and profit and loss statements, for the financial years ended 30 June 2013 to date in respect to the trust.
6. Copies of documents held by you relating to your appointment as Trustee, or co-Trustee of Mr A’s trust including all correspondence between you and Perpetual Trustee (also co-Trustee of Mr A’s trust), taxation returns, financial statements, and bank statements for the financial years ended 30 June 2013 to date.
7. Copies of your Taxation Returns for the years ended 30 June 2013 to date.
8. Copies of statements for all bank accounts held by you either solely or jointly in relation to your Westpac Bank Accounts, including term deposits and cash investment accounts from 30 June 2013 to date stop
9. Copies of statements for your Share Portfolio account held by you from 30 June 2013 to date.
The subpoena addressed to ‘The Proper Officer, Employer Pty Ltd’ was required to be served by 1 September 2008 and 4 documents to be produced to the Registry by 11 September 2018.
The schedule to the subpoena required production by the mother of the following:
1. A copy of the subpoena.
2. Copies of all contracts of employment relating to Ms Linn (date of Birth: … 1978).
3. Copies of documentation, including but not limited to, correspondence, file notes, internal memorandum, applications made by Ms Linn, relating to reduced hours of work or any amendment to the terms of employment relating to Ms Linn between 1 July 2013 to date.
The mother filed a Notice of Objection to Subpoena in relation to each of the subpoenas on 10 September 2018.
On each, the basis of the mother’s objection to production of all of the documents in the schedule was stated as follows:
1. These are children’s proceedings and not property proceedings.
2. The Mother has disclosed her financial position in her Financial Statement filed 14 August 2018.
3. The subpoena has been issued as a mere fishing expedition.
4. The subpoena relates to documents being produced in respect of third parties who are not parties to these proceedings.
5. The documents requested are irrelevant.
6. The terms of the subpoena are too broad and oppressive.
The Notices of Objection stated that the basis of the mother’s objection to inspection or copying of all of the documents produced was as stated in the 6 numbered paragraphs specifying her objection to production.
Objection to production of documents and objection to inspection of documents are, of course, two different things. Success on objection to production will obviate the need for consideration of objection to inspection.
If objection to production is dismissed then the Court should still consider objection to inspection if that has been raised in the Notice of Objection to Subpoena.
Accordingly, in relation to each of the 2 subpoenas, the mothers objection was based upon relevance, an abuse of the Court process in that the subpoenas were ‘a mere fishing expedition’ and an abuse of the Court process in that the subpoenas were ‘too broad and oppressive’.
The mother also objected to each of the subpoenas on the basis that on 25 October 2018, his Honour Judge Monahan had made an order setting the mothers Notices of Objection to subpoena down for hearing at 10am on 29 March 2019.
His Honour ordered that:
By no later than 4 PM on 1 March 2019, the father cause his legal representatives to advise the mother if the subpoenas issued to Employer Pty Ltd and the Respondent is being pressed entirely, partly or not at all and if so, the scope of the documents sought including any documents not being pressed in.
The mother advised, on the day of hearing, that no advice, as required by the order, has been received by her from the father’s legal representatives up to the time of the hearing on 7 May 2019.
The hearing set down by his Honour for 4pm on 1 March 2019 had been vacated due to the lack of available judicial times on that day and the matter had been listed on 7 May 2019 at 2:15pm for the subpoena hearings, that listing being made before me.
It was conceded on behalf of the father that the advice required to be given to the mother pursuant to his Honour’s order of 25 October 2018 had not been complied with.
Materials Relied Upon
The mother as, in effect, the Applicant, relied upon the two subject subpoenas and her Notice of Objection to each, and upon her affidavit sworn and filed 6 May 2019.
The mother appeared at the interlocutory hearing on her own behalf. I note that the mother is a professional.
The father relied upon the two subject subpoenas and an Outline of Submissions prepared by his solicitor, Ms Nixon, who appeared for and with him at the interlocutory hearing as solicitor advocate.
In the mother’s affidavit she set out her reasons for her objection to the subpoena.
In paragraph 5 she deposed that:
The books, documents and things listed under the two (2) subpoenas are of no relevance to these proceedings for parenting orders.
In paragraph 6 she asserts that the subpoena issued to her employer, Employer Pty Ltd are of no relevance to the parenting proceedings and that the subpoena has been issued by the father ‘as a mere fishing expedition’.
In the second paragraph 6 in the affidavit, the mother asserts that her financial records are none of the father’s business and are of no relevance to the parenting proceedings and that the father is perpetrating an abuse of Court to obtain her personal and confidential financial information and records.
In relation to copies of any Trust Deed relating to her brother, Mr A, referred to in the schedule to the subpoena addressed to the mother, she asserts that the financial or business records of her brother are none of the father’s business and are of no relevance to the parenting proceedings and that the father is, again, perpetrating an abuse of Court with a view to obtaining her brother’s personal and confidential financial information and records.
In paragraph 8, the mother deposes that the parties:
…have already filed Financial Statements which was only of relevance to the issue of Funding the Expert Report.
In paragraphs 9 and 10 the mother addresses the failure of the father’s legal representatives to comply with the order made on 25 October 2018 to advise the mother in relation to what parts, if any, of the two subject subpoenas are being pressed by the father.
The mother deposes in paragraph 11 of her affidavit that she seeks an order that the father pay her costs of the subpoena hearing. The question of costs was not pressed by either party at the interim hearing.
In her Outline of Submissions document, Ms Nixon made written submissions as to why the document sought in each of the subpoenas were relevant to the proceedings before the Court for final hearing and were not an abuse of process by way of either a fishing expedition or by being too broad and oppressive.
Ms Nixon noted the order made on 24 October 2016 that the father spend time with [X] supervised by Contact Centre and that on final hearing the father may raise the issue of the mother having capacity to meet one half of the costs up to 24 October 2016 for supervision. Ms Nixon further noted that the father reserved the right to argue the contribution by the mother to the costs of the Expert Report at a later time.
The father asserts that the documents sought are relevant in relation to the financial position of the mother as part of an argument on contribution to the costs of supervision, which I assess to be a parenting order issue and not a section 117 costs order issue, and to the costs of the Expert’s Report, which I assess to be a section 117 costs order issue and therefore not of itself relevant in the course of the final hearing.
The father further asserts that the documents sought in each of the subpoenas are relevant to the parenting issues before the Court for final hearing in that they are part of the evidence going to the nature of the mother’s employment, full-time or part-time, and therefore her availability to care for [X].
Ms Nixon in her submissions referred to Carter v Hayes[1] in which it was held that a document may, even if not admissible in the proceedings, materially assist in cross-examination or reveal information that may be admissible if it exists in another form, and that for that purpose, documents sought may still be relevant even if not admissible in evidence.
[1] Carter v Hayes (1994) 61 SASR 541.
Ms Nixon also noted A v Z,[2] where his Honour Justice Brereton held that a subpoena may be objectively relevant if it seeks documents relevant to credit, another matter going to informing cross-examination.
[2] A v Z [2007] NSW SC 899.
In this regard, as the parties have each filed a Financial Statement in the proceedings it may be that some documents sought in subpoenas are for the purpose of testing the mother’s credit on her sworn document in cross-examination.
The Law
The touchstone case for objection to subpoena on the basis of relevance is Commissioner for Railways v Small[3] and on the basis of abuse of the Court’s process is Waind v Hill and National Employers’ Mutual General Association Ltd.[4]
[3] Commissioner for Railways v Small (1938) 38 SR(NSW) 564.
[4] Waind v Hill and National Employers’ Mutual General Association Ltd [1978] 1 NSWLR 372.
In Commissioner for Railways v Small Jordon J said:
A writ of subpoena duces tecum may be addressed to a stranger to the cause or to a party. If it be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger to the cause ought not to be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant: Lee v. Angas; Burchard v. Macfarlane; A.-G. v. Wilson; Newland v. Steer. And if a subpoena duces tecum is issued to such a person in an objectionable form, the witness may apply to the Court to have it set aside. If duly served with such a writ and provided with the proper conduct money, the person served must obey it and bring to the Court the documents mentioned in the subpoena if he has them, unless he procures the writ to be set aside as oppressive.
In In the Marriage of Epstein and Epstein[5] Treyvaud J noted:
[5] In the Marriage of Epstein and Epstein (1993) 16 Fam LR 588.
In 1978, in Lucas Industries Ltd. v. Hewitt 45 F.L.R. 175 and 189-90, Smithers J explained the use of the subpoena, and its abuse, in the following terms:
The purpose of the process of subpoena is to facilitate the proper administration of justice between parties. For that purpose it is the policy of the law that strangers who have documents may be put to certain trouble in searching for and gathering together relevant documents and bringing them to court. It is according to the same principle that persons who have knowledge of facts are put to the inconvenience of being brought to court and required to give evidence.
...
It would, no doubt, be a good reason for failure to produce documents that the effort and expense involved in doing so was greater than ought reasonably to be required. This is a matter which would at that stage be capable of rational resolution by the court according to the circumstances. So far as the effort and expense in arranging for production of particular documents in any case exceeded what was reasonable, their non-production would be acceptable to the court. But if a subpoena be wholly set aside on the grounds that on its face it is oppressive, then the subpoena wholly fails and there is the possibility that although some or even substantial compliance might have been undertaken with a minimum of effort, the whole procedure may be needlessly frustrated.
In 1984, in Purnell Bros Pty. Ltd. v. Transport Engineers Pty. Ltd. 73 F.L.R. 160 at 174-5, Powell J summarized circumstances in which the Court would exercise its power to set aside a subpoena. Having done so, he took a global view of the Court's power, saying:
It seems to me, however, that when, as one does, one finds assertions that the court's power to set aside a subpoena is but part of the inherent jurisdiction of the court (see, for example, R. v. Lewes Justices; Ex parte Secretary of State at 240 per Lord Parker C.J., 244 per Bridge J (as he then was) coupled with assertions that a subpoena will be set aside if it be used for an impermissible, or illegitimate, purpose, or, if to require compliance with it would be oppressive (see, for example, Commissioner for Railways v. Small at 573-575 per Jordan C.J.) it is difficult to avoid the conclusion that, in reality, the court's power to set aside a subpoena is but one aspect of the court's inherent jurisdiction to prevent an abuse of its process by a party to litigation, and that, accordingly, the particular classes of case which I have recorded above are to be regarded as no more than examples of situations which the courts, in the past, have held, and, in the future, would hold to be cases of an abuse of process.
A neat summary of the relevant law in relation to abuse of the Court’s process through ‘fishing’ expeditions is found in the judgment of Judicial Registrar, later Her Honour Justice, Moore in Sharpe & Dalton,[6] cited with approval by the Full Court in Hatton:[7]
[6] Sharpe and Dalton (1990) FLC 92-167
[7] Hatton v Commonwealth Attorney General & Ors (2000) 26 Fam LR 570.
A subpoena duces tecum is a writ issued by the Court upon application by or on behalf of a party. It commands a person to whom it is directed to attend before the Court and to search for and produce to the Court documents relating to the cause or matter. It carries upon its face a warning of the possible consequences for non-compliance being attachment and fine. They are in the nature of peremptory orders demanding obedience.
Discovery and inspection of documents is a pre-trial procedure to ascertain the existence, nature and contents of relevant documents. Whilst the process of discovery is subject to the control of the Court and the Court can determine matters such as the validity of objection to production for inspection and generally enforce the duty to make disclosure and grant inspection, the function and the practice and procedure relating to it differs from the issue of subpoena whether issued against a stranger or against a party to proceedings.
Though a case concerned primarily with natural justice, I have had regard to the Full Court decision of Scheibner-Grover and Ryan (1987) FLC ¶91-833 at pp. 76,266-76,267 which reads as follows:
We should not let the opportunity pass without making some observation about use of the provisions of O. 28 as an aid to discovery. In our view, O. 20 governs the practice and procedure for pre-trial discovery and inspection and O. 28 should only be used to ensure the production of appropriate documents at the hearing of any application. Waind v. Hill and National Employers' Mutual General Association Ltd. (1978) 1 N.S.W.L.R. 372 at 382. In the marriage of Mallet (1981) FLC ¶91-091; (1981) 7 Fam. L.R. 1027 at p. 1045.'
In Waind v. Hill & Anor (1978) 1 N.S.W.L.R. 372 Moffitt P. considered that there are three steps in the procedure of having a third party bring documents to court and in their use thereafter. The relevant passage is at p. 381:
The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise.
And again at pp. 381-382:
Upon the first step the person to whom the subpoena is addressed may seek to, and have, the subpoena set aside on the ground that it was improperly issued and an abuse of the power to compel the production of documents in any one of a number of ways. Such a case is where the subpoena is used for the purpose of discovery. The essential feature of discovery in this connection, as appears from Burchard's case (1891) 2 Q.B. 241 at pp. 247-248 and Small's case (1938) 38 S.R. (N.S.W.) 564 at p. 574; 55 W.N. 215 is that the person to whom the subpoena is addressed will have to make a judgment as to which of his documents relate to issues between the parties. It is oppressive to place upon a stranger the obligation to form a judgment as to what is relevant to the issue joined in a proceeding, to which he is not a party. Hence it is an abuse of the use of a subpoena to impose this obligation. It follows that it is an abuse to use any subpoena, i.e. even to a party to obtain discovery.
The Full Court in Hatton (Finn, Kay and Dessau JJ) referred with approval to further comments by Treyvaud J in In the Marriage of Epstein[8] and said that apparent lack of relevance is a distinct ground for setting aside a subpoena:
As to relevance, the law is that ``production of a document on subpoena by a stranger is only required if the document is sufficiently relevant to the action in the sense that it is likely to add in the end, in some way or other, to the relevant evidence of the case''. Waind v. Hill (1978) 1 NSWLR 372.. See also Eighth Dictum Pty. Ltd. v. The Commissioner of Taxation (unreported) the Supreme Court of Victoria 1991 (per Hedigan J) where his Honour said:
It is not, of course, always easy to determine whether the pursuit of documents by way of subpoena, the contents of which are not specifically known to the parties seeking to obtain the documents, amounts to fishing in the sense that the law understands that phrase. Moffit J.A. in Waind examined at some length the appropriate procedures that should be followed with respect to subpoenaing a stranger's documents.
... His Honour's analysis of the authorities (379-382) emphasises the impropriety, capable of remedy by an order setting aside a subpoena, of using a subpoena duces tecum as a substitute for discovery. Whilst the law is well familiar with cases in which subpoenae will be set aside on the grounds of oppression, either because it is so wide as to be oppressive or because it imposes an onerous task on the stranger to collect and produce documents which may have no relevance to the litigation, a subpoena may be an abuse of process in other ways.
... The law clearly is that a subpoena to produce documents directed to a person not a party may be set aside as oppressive or an abuse of process if the documents, production of which is required, are not sufficiently relevant to any question in the proceeding (see Small and Waind v. Hill). The latter case described the test of relevance as being that inspection should be granted if it is necessary for the proper conduct of the litigation in that it is reasonably likely to add, in the end, in some way or the other, to the relevant evidence in the case.
The Courts have fashioned this feature of the right to set aside a subpoena as oppressive, or as an abuse of process, in respect of documents required of a stranger as a method of balancing the interest in the Court in compelling any witness who has relevant information which might assist the Court against the right of a stranger not to be compelled to come to the Court, with all its attendant inconvenience, unless what might be said or produced is a productive element.
[8] In the Marriage of Epstein (1993) FLC 92-384
Section 45 of the Federal Circuit Court Act 1999 provides:
(1)Interrogatories and discovery are not allowed in relation to proceedings in the Federal Circuit of Australia unless the Federal Circuit Court of Australia or a Judge declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
(2)In deciding whether to make a declaration under subsection (1), the Federal Circuit Court of Australia or a Judge must have regard to:
(a)whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and
(b)such other matters (if any) as the Federal Circuit Court of Australia or the Judge considers relevant.
In Elias v Elias[9] Monahan J observed that there are a number of possible processes available for the disclosure of documents in proceedings in the Federal Circuit Court of Australia including subpoena to produce, Notice to Produce and discovery.
[9] Elias v Elias [2014] FCCA 457.
It is a normal process in proceedings in the Federal Circuit Court of Australia for a subpoena requiring production of documents to be issued inter parties, rather than use of a Notice to Produce, so that the documents can be produced and inspected prior to a hearing
Documents produced under a Notice to Produce are produced, pursuant to Rule 15A.17 of the Federal Circuit Court Rules 2001 ‘at the hearing of the proceedings’.
No order allowing discovery has been made in this matter, but the requirement of section 45 that an order of the Court be obtained before formal discovery does not throw open the door to subpoenas to produce being used for ‘fishing’ expeditions.
The rules relating to issuing of subpoenas in the Federal Circuit Court of Australia are in Part 15A of the Federal Circuit Court Rules 2001.
Rule 15A.02(4) requires that a subpoena requiring a person to produce a document or thing must include an adequate description of the document or thing and the time and place for production. Both of the subpoenas in question comply with this rule.
Rules 15A.05 and 15A.06 deal with service of subpoenas and conduct money. No objection was taken by the mother in relation to either of those issues.
Rule 15A.09 provides that on application, the Court may make an order setting aside all or part of a subpoena. This rule overcomes what has in the past been a difference of judicial views on the proposition that once a subpoena has been found to be an abuse of process as to part thereof, or is not apparently relevant as to part thereof, it should be set aside in full.
The differing judicial views can be seen in Commissioner for Railways v Small (1938) 38 SR (NSW) 564, Mandic v Phillis [2005] FCA 1279, Pasini v Vanstone [1999] FCA 1271 and Brand v Digi-Tech [2001] NSWSC 425 (as cited by Cronin J in Cahill & Cahill and Anor [2013] FamCA 176).
By its wording, Rule 15A.09 would not seem to be confined to the legal entity subpoenaed, but would extend to parties to the proceedings making application to set aside all or part of a subpoena issued by the court to a third party.
Similarly, Rule 15A.14(1), which refers to ‘A person who objects to producing a document subpoenaed, or another party or an interested person who objects to the inspection or copying of a document subpoenaed by a party to the proceedings ….’ would seem to encompass a party to the proceedings objecting to the production of documents on subpoena by a third party.
Discussion
Turning to the subpoenas in question and starting with the subpoena to ‘The Proper Officer, Employer Pty Ltd’, I note that paragraph 1 in the schedule is not a problem, requiring only production of a copy of the subpoena. I do not doubt this is for the clerical assistance of the Court Officers receiving documents produced to the Court Registry.
Paragraph 2 requires the production of copies of all contracts of employment relating to the mother. The subject child, [X], was born on … 2014. In relation to matters going to the mother’s availability to care for the child from the time of her birth up to the present, in terms of her employment requirements, and also of the issue between the parties, voiced by both the mother on her own behalf and by Ms Nixon in submissions on behalf of the father, of the mother’s assertion that the father made no contribution to the financial support of the child at any time since the child’s birth, documents can only be relevant from about the time of the child’s birth.
The paragraph is not a ‘fishing’ expedition as the documents are not sought by the father in an attempt to ‘see if he has a case’, but is a purposed production requirement addressing a specific known issue.
The description of documents is not so wide as to be onerous and oppressive, it refers to specific documents as a class and is not an ‘all documents relevant’ type description that would require the subpoenaed third party to make judgments on the relevance or apparent relevance of documents. The paragraph is not an abuse of process on either of those basis.
Accordingly, I find that paragraph 2 in the schedule is too wide in that it takes in documents that cannot be relevant to the issues, but I will remedy that by, in effect, setting aside part of the subpoena by limiting the documents to be produced under paragraph 2 to “Copies of all contracts of employment relating to Ms Linn (date of birth … 1978) covering the period from 4 January 2014 to the present.”
Paragraph 3 in the Schedule to the subpoena requires production by the Corporation of ‘Copies of documentation, including but not limited to, correspondence, file notes, internal memorandum, applications made by Ms Linn, relating to reduced hours of work or any amendment to the terms of employment relating to Ms Linn between 1 July 2013 to date.’
On the same basis, and for the same reasons as my limiting of the ambit of paragraph 2, I find that paragraph 3 of the schedule is too wide in that it takes in documents that cannot be relevant to the issues. I will remedy that by, again, setting aside part of the subpoena by limiting the documents to be produced under paragraph 3 to ‘Copies of documentation including but not limited to correspondence, file notes, internal memorandum, applications made by Ms Linn relating to reduced hours of work or any amendment to the terms of employment relating to Ms Linn between 4 January 2014 and the present’.
Turning to the subpoena issued to the mother, I note again that paragraph 1 in the schedule is not a problem, requiring only production of a copy of the subpoena.
In relation to paragraphs 2 and 3, the mother can produce such of the documents as are referred to therein as are within her power, possession or control. Those documents go to the issues between the parties in the period referred to above and on that basis are relevant for the period of [X]’s life.
In relation to paragraphs 4, 5 and 6 of the subpoena, I find that nothing has been put to me on behalf of the father to indicate that any of the documents referred to therein relating to ‘any trust’ for the mother’s brother or relating to ‘any trust’ of which the mother is ‘an appointor or beneficiary’ have sufficient apparent relevance to these proceedings to be a proper use of the Court subpoena power on the application of the father and accordingly, I find that paragraphs 4, 5 and 6 should be struck out of the schedule to the subpoena.
To cast the net that wide and that deep into the mother’s historical and present financial affairs is beyond the proper ambit of what is needed to address the issues I have referred to as giving relevance to production of certain of the mother’s financial records.
The mother being a trustee of a trust established for the benefit of her brother is not a matter relevant to the income and expenditure of the mother, or of her availability to care for the child on a day to day basis.
Paragraphs 7 and 8 require production by the mother of copies of her taxation returns for the years ended 30 June 2013 to date, and of copies of her bank account statements of all kinds with Westpac bank from 30 June 2013 to date.
The financial year from 1 July 2012 to 30 June 2013 cannot be relevant to the issues outlined above that can go to parenting issues in these proceedings and accordingly, I find that the paragraphs are too wide as to relevance. I will remedy that, again, by setting aside part of the subpoena by altering the start date from 30 June 2013 to 30 June 2015. As so altered, the paragraphs are not a ‘fishing’ expedition nor are they onerous and oppressive, the documents as redefined as to date ambit going to the issues between the parties in the proceedings.
Paragraph 9 of the subpoena requires production by the mother of copies of statements for her Share Portfolio account for the period from 30 June 2013 ‘to date’. The question remains as to what ‘to date’ means in that context. Is it the date the subpoena was issued by the Court, the date the subpoena was served, or the date on which documents must be produced to the Registry?
Perhaps that has been decided one or more times in the past, but, happily, I do not need to decide that question. I cannot see that casting the father’s net over the financial affairs of the mother in relation to the issues referred to above, or even in relation to a fair allowance for informing cross-examination on credit in relation to the mothers Financial Statement allows for the statements referred to in paragraph 9.
Accordingly, I find that paragraph 9 is not apparently relevant and I therefore strike out paragraph 9 in the schedule to the subpoena.
Having made the findings set out above, I make the orders as set out at the start of these reasons.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Morley
Date: 12 June 2019
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