FEDERAL CIRCUIT COURT OF AUSTRALIA
| MANSFIELD & MANSFIELD | [2017] FCCA 13 |
| Catchwords: FAMILY LAW – Property proceedings – subpoena issued to third parties – objection taken – objectors directors of trustee company in control of discretionary trust – relevance – husband beneficiary of trust – objectors his father and sister – preliminary use of documents sought – legitimate forensic purpose – fishing – oppression – abuse of process – lack of conduct money – objections dismissed. |
| Legislation: Family Law Act 1975, s.79 Federal Circuit Court Act 1999, s.45(1) |
| Cases cited: Mansfield & Mansfield [2016] FCCA 2233 Harrington-Smith v Western Australia (2003) 130 FCR 424 Dillon & Dillon and Anor [2012] FamCA 319 National Employers’ Mutual General Association Ltd v Waind & Hill [1978] NSWLR 372 Hatton v Attorney-General of the Commonwealth of Australia & Ors (2000) FLC 93-038 Papadoupoulos & Papadopoulos (No.2) [2007] FamCA 1683 Kennon v Spry (2008) 238 CLR 366 Sand v Sand (2012) 271 FLR 259 Harris v Harris [2011] FamCAFC 245 Searle v Pencious [2013] FamCA 345 Pittman v Pittman (2010) 43 Fam LR 121 Simmons & Simmons [2008] FamCA 1088 McIlwain v Ramsey Food Packaging Pty Ltd & Ors (2006) 221 ALR 785 Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 Moriarty & Moriarty [2009] FamCA 369 |
| Applicant: | MS MANSFIELD |
| Respondent: | MR MANSFIELD |
| File Number: | ADC 4119 of 2014 |
| Judgment of: | Judge Brown |
| Hearing dates: | 16 November 2016; written submissions received 22 August 2016; 16 September 2016 and 15 November 2016 |
| Date of Last Submission: | 16 November 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 11 January 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jordan |
| Solicitors for the Applicant: | Jacqui Ion Pty Ltd |
| Counsel for the Respondent: | Mr McGinn |
| Solicitors for the Respondent: | Scanlan Carroll Pty Ltd |
ORDERS
The objections to the subpoenae filed on 20 May 2016 are each dismissed.
The costs of this application be reserved to the trial.
IT IS NOTED that publication of this judgment under the pseudonym Mansfield & Mansfield is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 4119 of 2014
| MS MANSFIELD |
Applicant
And
| MR MANSFIELD |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are Ms Mansfield “the wife” and Mr Mansfield “the husband”. The wife has issued two subpoenae which relate to a number of trusts asserted to be associated with the husband and members of his family.
The recipients of the subpoenae in question are Mr Mansfield Senior. “Mr Mansfield Senior”, the husband’s father and Ms B “Ms B”, his sister. They object to the production of the documents sought, which relate to two trusts – the Mr Mansfield Trust and the Mansfield Trust. They are each directors of the company – (business omitted) Pty Ltd, which is the trustee of the Mr Mansfield Trust.
Significant controversy arises in respect of the relevance of the second trust to the current proceedings.…
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Details
- AGLC
- Mansfield & Mansfield [2017] FCCA 13
- Case
- [2017] FCCA 13
- Decision Date
CaseChat Overview and Summary
In *Mansfield & Mansfield*, Judge Brown of the Federal Circuit Court of Australia considered objections to subpoenas filed by the parties. The core of the dispute concerned the relevance of documents sought by subpoena in property proceedings brought under the *Family Law Act 1975*.
The legal issues before the court were whether the documents sought by the subpoenas were relevant to the proceedings, and consequently, whether the objections to the subpoenas should be upheld. The court was required to determine the appropriate test for relevance in the context of subpoenaed material and the stage at which relevance is assessed.
Judge Brown applied the test of relevance as provided by section 55 of the *Evidence Act 1995* (Cth), which requires that evidence, if accepted, could rationally affect the assessment of the probability of a fact in issue. The court noted that this test is broad and requires a rational or logical connection, however minimal or indirect, between the evidence and a fact in issue. In the context of subpoenas, the court must consider whether the material sought would be reasonably expected to throw some light on the issues in the proceeding. The court distinguished between the three steps involved in the use of subpoenas: obeying the subpoena, the court determining preliminary use of documents (which involves exercising a discretion to permit inspection), and finally, the court determining whether documents should be admitted into evidence. It is at the second step, concerning apparent relevance for inspection, that the difficulty often arises, as it is hard to determine relevance without inspection.
The court dismissed the objections to the subpoenas, reserving the costs of the application to the trial.
The legal issues before the court were whether the documents sought by the subpoenas were relevant to the proceedings, and consequently, whether the objections to the subpoenas should be upheld. The court was required to determine the appropriate test for relevance in the context of subpoenaed material and the stage at which relevance is assessed.
Judge Brown applied the test of relevance as provided by section 55 of the *Evidence Act 1995* (Cth), which requires that evidence, if accepted, could rationally affect the assessment of the probability of a fact in issue. The court noted that this test is broad and requires a rational or logical connection, however minimal or indirect, between the evidence and a fact in issue. In the context of subpoenas, the court must consider whether the material sought would be reasonably expected to throw some light on the issues in the proceeding. The court distinguished between the three steps involved in the use of subpoenas: obeying the subpoena, the court determining preliminary use of documents (which involves exercising a discretion to permit inspection), and finally, the court determining whether documents should be admitted into evidence. It is at the second step, concerning apparent relevance for inspection, that the difficulty often arises, as it is hard to determine relevance without inspection.
The court dismissed the objections to the subpoenas, reserving the costs of the application to the trial.
Orders
Orders of the court
1.
The objections to the subpoenae filed on 20 May 2016 are each dismissed.
2.
The costs of this application be reserved to the trial.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Section 55 provides as follows:55Relevant evidence(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.(2) In particular, evidence is not taken to be irrelevant only because it relates only to:(a) the credibility of a witness; or(b) the admissibility of other evidence; or(c) a failure to adduce evidence. The test of relevance, provided by section 55, is a wide one. To be relevant, the evidence in question must relate to a fact in issue in the case. The section requires a rational or logical connection between the evidence sought to be led and the fact in issue. The connection may be minimal and it may be indirect but there must be such a connection. Lindgren J put it as follows: relevance depends on “an objective test grounded in human experience, on the application of which minds may differ, but which does not allow for the exercise of discretion.”[11][11] See Harrington-Smith v Western Australia (2003) 130 FCR 424 at 426 In Dillon & Dillon and Anor Cronin J described what was the fact in issue in property proceedings brought under the Family Law Act 1975 in the following terms:The fact in issue in the property dispute is the entitlement of the respective parties to a division of whatever property either or both of them has having regard to the provisions of s 79 of the Act. To test whether something would rationally affect the probability of a fact in issue requires consideration of the probative value of the material. In respect of material pursued under a subpoena, it must be asked whether that material would be reasonably expected to throw some light on the issue in the proceeding.[12][12] Dillon & Dillon and Anor [2012] FamCA 319 at [10] The use of subpoenae, in proceedings before the court, involves a three step process. Firstly, the recipient of a subpoena must obey it by bringing the documents sought to court. Secondly, the court must then determine what preliminary use may be had of those documents. Necessarily this turns on whether to exercise a discretion to permit inspection. Thirdly, the court determines whether the documents should be admitted into evidence.[13] As Moffit P said,“It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs.”[13] See National Employers’ Mutual General Association Ltd v Waind & Hill [1978] NSWLR 372 at 381 per Moffit P The difficulty, which arises for both the court and the parties concerned, at the second step stage, is that it is invariably difficult to determine whether or not a particular document or class of document will throw light on an issue in the relevant proceedings without actually inspecting the document or documents in question. In Waind & Hill Moffit P went on to say as follows:“The crucial question in relation to the exercise of discretion to permit inspection in the second step is whether the documents have apparent relevance to the issues. It is at the third step that questions between the parties of relevance in fact and admissibility are ruled upon.”
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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