Martin & Martin & Anor (No 5) - [2014] FamCA 954

FAMILY COURT OF AUSTRALIA

MARTIN & MARTIN AND ANOR (NO 5)

[2014] FamCA 954

FAMILY LAW – Subpoena process – application to set aside – Where in interlocutory proceedings subpoena to give evidence was issued – appropriateness of registrar exercising discretion – Where the issue after evidence had begun concerned both the question of the existence of documents but also other questions about the substantive proceedings – Can counsel cross-examine own witness? – Can a witness be challenged about both the existence of documents but also credit in such an interlocutory process? – Application to set aside subpoenae refused – Where the court was asked to refuse to admit evidence obtained in that interrogative process at trial – Application refused on the basis that its admission and use was a matter for the trial judge.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

AG Australia Holdings Ltd v Burton and Another [2002] NSWSC 170

Faden and Faden (No 3) [2011] FamCA 897
Hexiva Pty Ltd v Lederer [2006] NSWSC 561
Hughes v Western Australian Cricket Association Inc (1986) 66 ALR 541
Ishac and David Securities Pty Ltd; Ishac v David Securities Pty Ltd (No 6) (unreported decisions of the Supreme Court of NSW, Young J, (1991); (1992)
Kennedy v Wallace [2004] FCA 636
Kennedy Taylor (Vic) Pty Ltd v Grocon Pty Ltd [1999] VSC 242
Khanna v Lovell White Durrant (a firm) [1995] 1 WLR 121
Lewis v Nortex Pty Ltd (in liquidation); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1064
LGM and CAM [2008] FamCA 185
Lucas Industries Limited v Hewitt [1978] 45 FLR 174
Luigi Iacullo v Remley Pty Ltd & Ors [2010] NSWSC 980
Martin and Martin [2012] FamCA 689
Martin and Martin and Anor (No 2) [2014] FamCA 232
Martin and Martin and Anor (No 3) [2014] FamCA 402
Martin and Martin and Anor (No 4) [2014] FamCA 442
Northern Territory and GPAO (1999) CLR 553
Penn-Texas Corporation v Murat Anstalt and Ors (No 2) [1964] 2 QB 647
Quach v Vu and Ors [2009] NSWSC 131
Re Z (1996) 20 Fam LR 651
Rogers v R (1994) 181 CLR 251
Trade Practices Commission v Arnotts Limited and Ors (No 2) [1989] 21 FCR 306

APPLICANT:

Ms Martin

RESPONDENT:

Mr Martin

INTERVENOR:

X Firm

FILE NUMBER:

MLC

9829

2007

DATE HEARD:

4 September 2014

DATE DELIVERED:

7 November 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

By way of written Submissions

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE RESPONDENT:

Taussig Cherrie Fildes

SOLICITOR FOR THE INTERVENER:

X Firm

SOLICITOR FOR MR O:

Bowman & Knox

Orders

The applications to set aside the subpoenae to Mr O and Mr HH Martin are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Martin & Martin and Anor (No 5) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9829 of 2007

Ms Martin

Applicant

And

Mr Martin

Respondent

And

X Firm

Intervener

REASONS FOR JUDGMENT

I heard submissions on 4 September 2014 in this matter and, at the suggestion of counsel, adjourned the dispute to enable written submissions to be filed. Those submissions came in over the ensuing six weeks.
The principal issue is whether two subpoenae to produce documents and also give evidence addressed to Mr O and Mr HH Martin issued by the Court upon the request of X Firm as interveners, should be set aside. In addition to hearing from counsel for the named subpoenaed persons, I also heard from counsel for the interveners, the husband and the wife respectively.
In my view, it is not appropriate to set aside the subpoenae. The reasons for that decision follow.
There is a second issue about whether any evidence given by Mr O can be used at the ultimate final hearing. It is not necessary for me to decide that issue in these reasons but I shall return to it.
The substantive proceedings are unusual but well documented in reported decisions of this Court. In 2011, there were contested property proceedings between the husband and the wife. At that time, the wife was represented by the intervener. The intervener’s retainer was subsequently terminated. The husband and wife say they resolved their dispute and produced minutes of proposed final orders to Coleman J. His Honour declined to make the orders. His Honour’s reasons were published as Martin and Martin [2012] FamCA 689.
Throughout a variety of interlocutory proceedings thereafter, the intervener has maintained that the course of conduct by the husband and the wife amounted to a fraud to defeat its claim. Various decisions have been made about these proceedings (see Martin and Martin and Anor [2014] FamCA 98; Martin and Martin and Anor (No 2) [2014] FamCA 232; Martin and Martin and Anor (No 3) [2014] FamCA 402; Martin and Martin and Anor (No 4) [2014] FamCA 442).
The controversial proceedings before me arose out of subpoenae to the two named persons to produce documents and to give evidence. They were issued at the request of the intervener.
Relevantly, the first subpoena in time was to accountant Mr O. It was issued by the Court on 4 July 2014 returnable on 18 July 2014. It sought a long list of documents but it also sought that Mr O attend to give evidence. The return date of the subpoena was extended to 15 August 2014 upon which day, Mr Glick QC and Mr Puckey of counsel appeared for the husband and Mr Heliotis QC with Mr Werner, appeared for the intervener. The wife was represented by her solicitor. No objection of the type contemplated by rule 15.26 of the Family Law Rules 2004 was raised until later than 20 August and after Mr O had given a significant amount of evidence.

Friday 15 August 2014

For reasons that do not immediately matter, but may become relevant, Mr O did not initially attend at the allocated time on the morning of 15 August.
Mr Glick indicated that he and Mr Puckey had other commitments and as the issue of concern to Mr Heliotis was about Mr O rather than the husband, they sought to be excused. As I now understand the position of Mr Glick, he understood that the questions of Mr O by Mr Heliotis would be limited.
The other subpoena returnable on 15 August 2014 had been issued to Mr HH Martin who is the father of the husband. It too sought that he give evidence as well as produce documents. This subpoena was filed and issued on 16 July 2014. It seems that Mr HH Martin had not appeared on the return date as he was interstate. Nothing seems to turn on that.
Mr O had produced some documents but the extent of compliance remains unclear.
There is little doubt that Mr O was cross-examined by Mr Heliotis for part, if not most, of the afternoon of Friday 15 August and, as there were unresolved issues as indicated by Mr Heliotis, I adjourned the matter to the following week.
There is a distinction between examination and cross-examination of a witness. The dictionary to the Evidence Act 1995 (Cth) defines them and distinguishes between them but mainly on the basis of who called the witness. The manner and form of the questioning is defined in s 29 of that Act. Directions can be made about the way in which evidence is to be given but otherwise unless directed by the Court, a party may question a witness as that party sees fit.
If the Court decides to give any directions, it must take into account the provisions of s 192(2) including inter alia, the extent to which it would be unfair to a party or the witness but the Court must also take into consideration the importance of the evidence. I shall look at those questions below.
Another apparent criticism of senior counsel for the intervener by the other parties or some of them is that he cross-examined his own witness. Leading questions, may be asked in examination in chief if no objection is raised. Otherwise, the unfavourable witness provisions in s 38 of the Evidence Act apply. I have kept these provisions in mind when considering the parties’ submissions.

Wednesday 20 August 2014

On 20 August, Mr Glick and Mr Puckey again appeared for the husband and a number of submissions were then made. The husband was very critical of the process that had been followed on the preceding date in relation to Mr O. Those submissions are not relevant to this determination notwithstanding that at the following hearing on 4 September, Mr Glick asked that I revisit rulings I had made specifically in respect of questions by Mr Heliotis of Mr O to which Mr Puckey objected in the hearing on 20 August. In my view, it is not necessary that I do that.

The cross-examination

I have described the questioning by Mr Heliotis of Mr O as “cross-examination” because that indeed was what it was. In summary, much of the cross-examination of Mr O can be said to fall into three categories. First, his non-attendance to answer the subpoena. Secondly, his failure to comprehensively respond to document production. Thirdly, a large number of questions about his involvement in and knowledge of, the series of transactions involving the husband, the wife, other lawyers and the husband’s father about giving effect to a final settlement as between husband and wife.

Thursday 4 September 2014

On 4 September 2014, when the Court re-convened, Dr Collins QC appeared for Mr Martin, Mr O’Bryan of counsel appeared for Mr O, Mr Wilson of counsel appeared for the wife, Mr Glick QC with Mr Puckey appeared for the husband and Mr Brown QC with Mr Werner appeared for the intervener. Mr Heliotis had been excused at his request as he was apparently going to be overseas.
These reasons therefore relate to the submissions made by all parties that day.
Other than the intervener, the parties sought that the Court set aside the subpoenae. It was also submitted that the Court should order that the evidence of Mr O not be used in any trial hearing.
Mr Glick asked that the Court refer the conduct of Mr Heliotis to the relevant professional body on the basis of questions that it was said had been put to Mr O for which there was no professional foundation and, as later appeared from the evidence of Ms NX, were specifically said not to have been based on instructions from the Ms NX. I do not propose to deal with that issue in these reasons because it is not germane to what I have to determine and in any event, before making any such determination, Mr Heliotis would need to be heard. I will simply leave that and if a formal application is made, it can be brought to the attention of Mr Heliotis for his response.
I also observe that in respect of the last point, the solicitors for the husband sought and obtained from the Court a subpoena addressed to Ms NX. Ironically, given the nature of the criticisms made of Mr Heliotis for straying outside of the concept of the requirement for the provision of documents or an examination as to their existence, Ms NX was cross-examined about the basis under which the subpoenae to Mr O and Mr HH Martin and the instructions she gave to Mr Heliotis. The clear inference from the questioning was that it was being alleged that Mr Heliotis was on a frolic of his own bearing in mind that Ms NX’s firm was not only a party but also a firm of lawyers. As I have indicated, I draw no conclusions about all of that.
Dr Collins submitted that the authorities did not permit what had happened in respect of Mr O. I shall deal with the authorities that he helpfully provided. His client, Mr Martin had stood willing to provide the documents sought in the subpoena but he reserved his position on the question of setting it aside.
Mr Brown did not seek to continue the cross-examination of Mr O nor, at that stage, did he seek to do anything about the subpoena to Mr HH Martin.
Mr O’Bryan began his submissions but, having regard to their length, helpfully agreed that they should be completed in writing. I turn to those below.
Mr Brown said that this setting aside application was all news to him and he sought an opportunity to respond. That was appropriate and he agreed to file a written submission. I have now had the advantage of those submissions although they were drawn by different counsel to Mr Brown.

The submissions of Dr Collins QC

The subpoena power lies in rule 15.17 of the Rules in relation to the production of documents. Dr Collins submitted that usually, the ordering by subpoena of a person to give evidence, occurred at a trial.
Dr Collins took the court through the history of the subpoena process and he submitted that the law that should be applied, subject to some discretion, was that the witness producing documents should not be cross-examined nor asked questions because those matters were to be determined at trial. This submission was also strongly articulated by Mr Glick for the husband.
In Khanna v Lovell White Durrant (a firm) [1995] 1 WLR 121 Sir Donald Nicholls V.-C. examined the process then existing in England that had developed under which, documents were produced prior to trial. The purpose of that exercise was to avoid delay and adjournments at the main trial as well as to further interests of justice and save costs. The importance of this decision is its focus on case management and the fact that the Court has the responsibility to control the process. To a very large degree, that is now the purpose of the Rules.
Dr Collins then referred to Kennedy Taylor (Vic) Pty Ltd v Grocon Pty Ltd [1999] VSC 242 a decision of Gillard J. This case was about the plaintiff in a proceeding filing a number of subpoenae requiring the production of documents in which each of those recipients had objected. His Honour examined the process under which the rules of the Supreme Court enabled a party to seek discovery from a non-party. His Honour considered the approaches of various courts and specifically referred to the decision of Lucas Industries Limited v Hewitt [1978] 45 FLR 174 a decision of the Full Court of the Federal Court of Australia. In that decision, Smithers J with whom the other judges agreed, held that:
If considerations of justice and convenience require production of relevant documents at some particular time whether before or after trial, production should then be ordered.
Ultimately, Gillard J set aside the subpoenae because counsel for the party seeking to have them issued conceded that the purpose of the exercise was not to gather evidence for the trial. At that time, the interlocutory steps had gone no further than the delivery of an amended statement of claim and the trial was a long way off. His Honour said at para 80:
In my opinion, the plaintiff was not entitled to file the subpoenas for the purpose of gathering information to enable it to plead its case and the subpoena should be set aside.
Having set aside the subpoenae, Gillard J returned to the subject of the process and said that the procedure was an appropriate one designed to avoid the inconvenience of producing documents at trial. His Honour then went on to say at para 80 that the process was:
…equally importantly, to apprise parties of their strengths and weaknesses so that steps can be taken to settle the case before the costs mount.
His Honour referred back to the principles outlined by Sir Donald Nicholls V.C. in the Khanna case (supra). The importance of this decision lies in the observations by Gillard J about the purpose for which a subpoena to produce documents is used. It is not intended as a substitute for discovery. It is not intended to enable a litigant to build a case. It certainly can be used where a party to the litigation has not adequately provided documents that assist the court in achieving justice for all parties and it certainly can be used in circumstances where there is a case but some of the evidence is missing. It is the intervener’s case here that discovery has not been adequate by the husband and wife and in previous reasons for judgment, I have remarked upon their silence. The finding of a prima facie case of fraud earlier in these proceedings justifies the pursuit of documents that may take the case beyond the prima facie stage for the reasons that Gillard J articulated about confining issues and resolving them.
Dr Collins referred the Court to Penn-Texas Corporation v Murat Anstalt and Ors (No 2) [1964] 2 QB 647. This decision too examined the process and in particular, what might be described as an interlocutory process under which directors of a litigant company had been ordered by a court to give evidence and produce documents. The distinguishing feature of that particular case was that there was a person described as the “examiner” who was to undertake the task. Indeed, the court looked at the process of interrogatories. Having regard to the nature of the rules with which I am dealing, I do not think that the decision is particularly helpful.
Dr Collins then took the Court to a 1989 decision of the Federal Court in Trade Practices Commission v Arnotts Limited and Ors (No 2) [1989] 21 FCR 306. This was an application by litigants for a direction that a subpoenaed officer of a company not a party to the litigation, be sworn for the purposes of cross-examination about the fact that he did not have the documents described in the subpoena. The company applied to set aside the subpoena as oppressive. The focus of this decision was on the existence or otherwise of the documents. Beaumont J set out what he described as a process with a “degree of formality” with the objective of achieving a fair result as between the persons who were disputing the subpoenae process as distinct from the parties to the litigation itself. His Honour said that the witness should be examined by counsel for the litigant as a witness for that party. Importantly, his Honour ruled that none of the evidence given was to be accepted as evidence in the principal proceedings or indeed, in any subsequent proceedings arising out of any allegations that there had been a failure to comply with the subpoena. Again, this focus was on the existence of the documents as distinct from the pursuit of information relating to the case itself. The timing of that decision is also important. It was 1989 and when I return to the issue of the Family Law Rules both before and after 2004, I consider there has been a significant change in recent times and there is a need for the Court to be flexible about processes so that not only can justice be done but it be done efficiently.
Dr Collins also referred to Ishac and David Securities Pty Ltd and Ishac v David Securities Pty Ltd (No 6) which are two unreported decisions of the Supreme Court of NSW delivered by Young J in 1991 and 1992. In the 1991 decision, Young J examined what had been said by Beaumont J in Trade Practices Commission v Arnotts Limited (No 2) (supra). His Honour said that the judge had to exercise discretionary powers in such a way as to ensure that there was a fair trial. He thought that it was not appropriate to impose any condition at that point in the process about whether a party could be cross-examined by his own counsel. In Ishac, the dispute was about whether or not the recipients of the subpoena had documents in their possession. The issue was how far those recipients could be examined to see whether they had been diligent in their response to the production of documents. Young J, in referring back to the decision of Trades Practices v Arnotts Limited (supra), said that the court had to be conscious that, in exercising its discretion to require a party to explain the response to the subpoena, it did not infringe the privilege of a person to not incriminate himself because a deliberate non-compliance with a subpoena was a contempt of court with penal consequences. Whilst the focus must be on protecting the witness against self-incrimination, it cannot be the law that, having been warned about contempt for non-compliance, a witness can simply claim the protection of silence.

Young J held that the questions asked in that case both as to the possession of documents and whether the subpoenaed party had obtained advice about the obligations, went beyond the legitimate purpose of the court in ensuring that its order was complied with. His Honour held that the limitation on questioning was that the witness could be asked whether he had documents and whether he had taken steps to produce them.
In my view, a hard and fast rule is not appropriate and each case must be determined on the basis of its particular facts. Here, in respect of Mr O, it was alleged that he had not complied with a previous subpoena and had deliberately not attended at the appointed time. There could be little doubt that counsel for the intervener was asserting that the witness was being evasive, uncooperative if not obstructionist. If, as I find here, that is a reasonable view, a court should exercise its discretion and permit cross-examination which goes to credit.
A similar question arose in Lewis v Nortex Pty Ltd (in liquidation); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1064 a decision in 2002 of Hamilton J. His Honour considered Trade Practices Commission v Arnotts Limited (supra). He adopted the views of Beaumont J. He said all that was required was that there be a real issue as to whether or not production of documents had been sufficient and then the court’s discretion was at large. His Honour then said at para 6:
Perhaps in an ordinary case the court may be sceptical and not prone to exercise its discretion upon a simple statement of non-acceptance (by counsel). But this is not an ordinary case and the documents in relation to which the issue arises are not ordinary documents.
His Honour went on to say that he would permit the questioning about the response to the notice to produce the documents but at the same time, the court had to be conscious of the “ambit and purpose” of the exercise as laid down by Beaumont J. He said at para 7:
This must not be turned into some sort of inquisition and examination must proceed accordingly.
There can be little doubt that all of the parties in the proceedings before me, save the intervener, argued that what occurred to Mr O was indeed an inquisition. In respect of the pursuit of evidence beyond the documents in the possession of Mr O, I accept that is so. The issue then becomes one about the admissibility of that evidence and in my view, for the reasons that are set out below, that is a matter for the trial.
Other decisions to which Dr Collins referred were Hexiva Pty Ltd v Lederer [2006] NSWSC 561 and Quach v Vu and Ors [2009] NSWSC 131 both of which are judgments of Brereton J. In the former, it was sought that an accountant for the plaintiff be required to attend for an examination in relation to compliance with a subpoena for production of documents. Documents had been provided but there was a dispute as to whether they were complete. Brereton J adopted the procedure as outlined by Beaumont J in Trade Practices Commission and Arnotts Limited (No 2) (supra) and said that in the interests of justice, there should be an opportunity to examine the subpoenaed person’s understanding of the obligations but the examiner did so at their own cost. His Honour said, as to the limits of the examination, he doubted that it would be permissible to pursue whether or not documents were in the possession of the subpoenaed party. It is not clear to me, why his Honour had that doubt. In the second case, Brereton J thought that there was a sufficient basis to test the sufficiency of the compliance issue but again said that there needed to be close regard to the limits that would be imposed and the type of examination. His Honour said that it was not a cross-examination nor was it an examination as to “non-compliance with the subpoena”. Again, his Honour doubted that it would be permissible to take an exploratory approach but this time he said that his concern was that such an exercise would go towards an allegation of contempt. Whilst I agree with that, because a failure to comply with a subpoena obligation gives rise to the possibility of a contempt allegation, a limitation on the examination about the documentation can also thwart the parties in the substantive litigation obtaining justice.
Dr Collins then referred the Court to Luigi Iacullo v Remley Pty Ltd & Ors a decision of Slattery J of the NSW Supreme Court [2010] NSWSC 980. Again, there was a question of alleged non-compliance with a subpoena. Slattery J said:
8. The principles of law applicable to the testing of sufficiency of an answer to a subpoena for production are now fairly clear. They have been explained in two well known passages from judgments of the Full Court. In Commissioner for Railways v Small (1938) 38 SR (NSW) 564, Jordan CJ said (at 574):
A witness called on subpoena duces tecum may be asked, without being sworn, whether he has brought the documents, and if so, whether he produces them to the court. If he states that he objects to produce them, he should be sworn and the grounds of his objection stated on oath so that the court may judge of their sufficiency: eg that they constitute his title deeds, or would incriminate him. The court may allow a stranger who is a witness to be represented by counsel for this purpose if it thinks that the circumstances warrant it….
9 In O’Born v Commissioner for Government Transport (1959) 77 WN (NSW) 81 the Full Court (Street CJ, Clancy and Walsh JJ) said:
But the person upon whom the subpoena is served (in the present case the plaintiff) must be asked in court to produce the document, and this question may be put to him without his being sworn. If he had adduced that he objected to produce the document ‘he should be sworn and the grounds of his objection stated on oath so that the court may judge of their sufficiency’, for if the witness produces a document he produces it to the court and not to the parties. Furthermore, if the plaintiff (echoing the words his counsel used) had stated that he did not produce the document because he knew nothing of it, it would not have been possible to deal with him for disobedience to the subpoena, unless some proof were given, not only that the document existed at the time, but also that it was in his possession and control.
Slattery J then said:
12. Such examinations derive are (sic) only in the nature of examination in chief, not cross-examination and the Court will not permit an examination to become a substitute for discovery. The capacity of such examination to harass or annoy a third party such as MMAI is limited by the confined nature of the questions that are permitted.
That statement and particularly the last sentence is, in my respectful opinion, an important one. The control by the court in relation to all procedures comes from either the common law or from legislation. The Evidence Act 1995 (Cth) provides assistance. I return to that below. Suffice to say, the first question in relation to the challenge to a named person in a subpoena about the existence of documents must be answered according to whether the Court is satisfied that it is important for justice to be done as between the parties to the substantive litigation whilst at the same time ensuring that any imposition upon the named person cannot be ameliorated by costs or other protections.
It is timely here to look at what purpose the subpoena process has in the system of law in Australia. It cannot be disputed that a subpoena is a court order.
In authorities such as those mentioned earlier and in cases such as Kennedy v Wallace [2004] FCA 636 and Hughes v Western Australian Cricket Association Inc (1986) 66 ALR 541, the courts expressed concern about the issue of subpoena where the principal proceeding had not been fixed for hearing. Gyles J in the former case said the issue of the subpoena required “some scrutiny”. One question under consideration there related to whether or not there was an appropriate forensic purpose.
The various authorities show the concern of the courts. They relate to “fishing” for a cause of action, intimidation and harassment of a third (or non) party, the absence of a final hearing date at which the admissible evidence would be led and that the subpoena was issued for an improper purpose.
In AG Australia Holdings Ltd v Burton and Another [2002] NSWSC 170, Campbell J at [131] in a different context but in my view of some relevance here said:
131While the administration of justice is a very important matter of social policy, it is not one which overrides all other matters of public importance. There are many constraints under which litigation operates, where, as a matter of public policy, information is not able to be used at all in litigation. In the Federal Court (which is probably the relevant court to consider for present purposes) the Evidence Act 1995(Cth) applies. It denies the court evidence when it is the subject of client legal privilege (section 117-126), religious confession privilege (section 127), self incrimination privilege (section 128), evidence relating to the reasoning process of a judicial officer (section 129), various public interest privileges (section 130), or evidence of settlement negotiations (section 131). As well, the court has a discretion to exclude evidence in the circumstances where section 135 applies, to limit the use of evidence under section 136, and to not receive evidence which was obtained improperly or in contravention of a law, or in consequence of an impropriety or contravention of a law under section 138. A subpoena to give evidence will usually not be enforced against an expert who has had no connection with the facts of the case (Application of Forsyth; Re Cordova v Philips Roxane Laboratories Inc[1984] 2 NSWLR 327). When there are these limitations on the court actually receiving evidence in litigation, it ought not come as a surprise if more extensive limitations can be imposed, consistently with public policy, on a lawyer’s receipt of information and documents, in the privacy of his own office, for the purpose of eventually being used in litigation.
132As well, when a case is in the course of preparation, limits are imposed on the ability of a litigant to compel the production of information which is relevant to the case. While there are procedures of discovery, and interrogatories, whereby a litigant can compulsorily obtain documents, and information, from an opposite party, those procedures are always subject to the control of the court. In the course of controlling those procedures, one of the factors which the court takes into account, is whether information is confidential. Confidentiality can be taken into account in deciding whether to order discovery at all, and if so to what extent, Science Research Council v Nassé[1979] UKHL 9; [1980] AC 1028 at 1065-1066, 1071-1072, 1073, 1077, 1085, 1089-1090. Further, the court can, in appropriate cases such as when the opposite party is a trade rival, allow inspection of a discovered document which is confidential on the basis that it is disclosed only to counsel, solicitors and nominated experts, not to the client: Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34.
133 If documents are obtained from a third party on subpoena, and the third party objects to those documents being inspected, the court decides whether, when, and subject to what, if any, limitations, inspection can occur: National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372.
134If the court requires the disclosure of information, or documents, for the purpose of one piece of litigation, the court ensures that (unless leave of the court is obtained) the information, or document, is not used for any other piece of litigation – Harman v Secretary of State for the Home Department [1983] 1 AC 280 (document obtained on discovery) Ainsworth v Hanrahan(1991) 25 NSWLR 155 (answer to interrogatories); Central Queensland Cement Pty Ltd v Hardy[1989] 2 Qd R 509 (witness statement).
Campbell J went on to discuss confidential information and the role of lawyers and privileges. What can be drawn from his Honour’s very considered judgment is that the pursuit of justice is not the be all and end all if it tramples on other substantive rights without hearing comprehensive submissions about the admissibility of any evidence given by Mr O. I am not convinced that has happened here.
In this Court as in most, subpoenae are not just issued at the whim of a party. In the submissions of the intervener to which I turn below, the following statement was made (at para 39):
NFL rejects specifically the submission that the Third Subpoena was issued for any purpose other than to test [Mr O’s] compliance with his obligations to produce documents and, to the extent that non-compliance could be established, identify when and how compliance might be achieved.
I accept that was the basis upon which that subpoena was issued. The examination itself, may have been a different thing.

The submissions of Mr O’Bryan

Mr O’Bryan sought an order that the subpoena to his client be set aside notwithstanding the indication from Mr Brown that no further evidence was required of Mr O.
Mr O’Bryan submitted that what had occurred was an abuse of process. His client had asked why the subpoena had been issued, had been denied an answer and he wanted to know. In my view, that question has been satisfactorily answered.
It was submitted that there were two objections upon which the Court should rule that the subpoena was an abuse of process and should be set aside. First, it was oppressive, too wide and used as a discovery tool and secondly his client had been subjected to cross-examination which in itself was an abuse of process.
Mr O’Bryan referred to a subpoena issued in December 2013 to Mr O and submitted that the wife was already in possession of documents that she was then seeking. That is, she had the documents referred to in the subpoena from another source and that disentitled her to pursue Mr O. He submitted that the Court should conclude that the subpoena was issued for an ulterior purpose. I have no evidence other than from the cross-examination of Mr O to indicate that the Intervener had documents that would justify such a conclusion. As an example, Mr Heliotis pressed Mr O for his documents and particularly his notes of a meeting that arose out of some notes prepared by another person. Mr O denied there were any. As Mr O was a professional man, the assumption had been made by Mr Heliotis that there were notes of the attendance. Mr Heliotis, in my view, was justified in pursuing that line of inquiry. The problem arises when such a witness says there are no notes because all the detail was kept in his head. The pursuit of that information is a vexed question but one I do not need to answer here.
Another thrust of Mr O’Bryan’s submission was that the issuing of the subpoena was premature because the discovery process should have been undertaken with the wife. There is some substance to that but having regard to the earlier decisions this Curt has had to make, my understanding has been that the Intervener has always complained about the absence of evidence and documents provided by the wife. I refer specifically to my earlier determination in which I found there was prima facie evidence of fraud.
Mr O’Bryan submitted that the Intervener was “fishing” by including the same pursuit of documents from more than one person. Fishing occurs where a party issues a subpoena for the purpose of establishing a cause of action. I do not agree that subpoenae cannot be sought and issued to obtain the evidence to corroborate a cause of action. In family law proceedings, fishing occurs where the person seeks information on a wide and untrammelled way to build a case. Having regard to the statutory provisions in Part VII and Part VIII of the Family Law Act 1975(Cth), that type of fishing would be expected to be unusual. In this case, the Intervener knew from documents of another lawyer that the accountant Mr O had been involved in discussions and it was apparently therefore presumed that he had information to contribute about what the wife’s position was. I do not find that to be fishing.
The submission went on to observe that the pursuit of Mr O both in respect of documents but more importantly in respect of the questioning, was to get him to make admissions to support the Intervener’s pursuit of the case at trial. Mr O’Bryan pointed to the transcript of the cross-examination and described parts of it as haranguing the witness. He submitted that the cross-examiner was not trying to clarify the whereabouts or creation of documents but rather questioning for an ulterior purpose. Whilst that may ultimately be found to be so, I do not consider that Mr Heliotis’s robust questioning was anything more than part of his advocacy style. My observation was that Mr O was not overborne, intimidated or even uncomfortable about those matters. I found him confident and mostly responsive. In respect of Mr Heliotis’s purpose, I shall address that below.
In his written submissions, Mr O’Bryan returned the issuing point. He said that the order that the Court had made on 8 August 2013 did not in itself permit the issuing of a subpoena as it required an arrangement with the Registrar. He said that the order only addressed the issuing of subpoenae for production of documents not to give evidence. He submitted that the issuing of the subpoena was therefore ultra vires and liable to be set aside as invalid on two grounds. First, he argued that it was outside the leave given to the parties to issue subpoenae for production of documents and secondly, there had been no compliance with rule 15.17(2) as there was no basis for a determination by the Court as contemplated under that rule. With both of those submissions, I disagree.
Prior to 2009, rule 16.08 of the Family Law Rules provided that parties were precluded from issuing subpoenae unless they were given permission. In 2009, the rules were altered and the replacing rule is now 15.17. That rule provides:
(1)      Subject to rule 22.34, the court may issue:
(a)      a subpoena for production;
(b)      a subpoena to give evidence; or
(c)      a subpoena for production and to give evidence.
(2)      Subject to rule 15.21, the court will issue a subpoena mentioned in subrule (1) at the request of a party only if:
(a)      the party has requested permission from the court; and
(b)      the court has granted permission.
Note: A request for permission should generally be made at a court event.
(3)      For subrule (2), a request for the court's permission:
(a)      may be made orally or in writing;
(b)may be made without giving notice to any other parties; and
(c)may be determined in chambers in the absence of the other parties.
(4)      A subpoena must identify the person to whom it is directed by name or description of office.
(5)      A subpoena may be directed to 2 or more persons if:
(a)      the subpoena is to give evidence only; or
(b)the subpoena requires each named person to produce the same document (rather than the same class of documents).
(6)      A subpoena for production:
(a)must identify the document to be produced and the time and place for production; and
(b)may require the named person to produce the document before the date of the trial.
The only statement that can be drawn from the explanatory memorandum relating to the rule change was that new powers were delegated to the “deputy registrars” including the power to grant permission under rule 15.17 to issue a subpoena. Rule 15.19 removed the time restrictions for issuing of subpoenae within the pathway of the litigation. The point however became that the party had to apply to the Court.

Rule 1.16 provides for the Court to have the guidance of a dictionary. “Court” is defined widely to include registrars or other delegated officers. That delegation is obviously subject to the supervision of the judges but it is a matter within the discretion of the registrar as to what type of subpoena is issued. The discretion can be seen in rule 15.17 by the use of the word “may”. Rule 15.17, as can be seen above, concerns all types of subpoenae including to give evidence and a combination of both. Nothing in the rule requires a formal order to be made and hence, the reference to the order is not to the point. In my view, the registrar must determine what is important to enable him or her to exercise a discretion. That includes the question of giving evidence. The issue of the purpose for which that evidence is to be given, is a matter no doubt to be considered by the registrar. As to why the subpoena was issued, the answer seemed to be clear from the evidence of Ms NX when she was examined by Mr Glick. She told Mr Glick that this course of action was taken because of non-compliance with the production of documents. It had not been seriously suggested that there had been compliance up until that time. Accordingly, nothing I heard or read, suggested that the registrar did not exercise the discretion properly. Accordingly, I reject both of the grounds as put by Mr O’Bryan to say that the subpoena was “ultra vires”.
Mr O’Bryan then submitted that the examination of Mr O was ultra vires. In addition to the question of the validity of the issuing process, Mr O’Bryan submitted that this was not a subpoena relating to the trial but rather for an interlocutory purpose. In my view, that argument has no merit. Both Mr O’Bryan and Dr Collins submitted that subpoenae to give evidence were normally only issued for the purposes of a trial but nothing in the rules would indicate that that is the case. This Court, like most courts, deals with a very high volume of interlocutory matters. The focus on those hearings is to have the matter determined on the papers and by submission. The opportunities to cross-examine and challenge affidavit material relied upon, are rare. That is for the efficient administration of the Court’s list. However, if a court considers at an interlocutory level that the determination does require the testing of the evidence, there is no logical reason why, subject to resources, that cannot be done. The extent of cross-examination of those witnesses is also a matter for the individual judge. If that were not the case, a court would not be able to determine controversial issues such as spousal maintenance, interim parenting arrangements, partial distributions of property and the like. Unlike many civil jurisdictions, this Court has to deal with the lives of individuals who have children that require security and families that need to be fed. In many cases, the ultimate determination at trial is more than a year away. Accordingly, I find that the subpoenae were validly issued.
A more important argument of all counsel focussing on the evidence of Mr O concerned the issue beyond that of the production of documents. Mr O’Bryan and indeed, Mr Glick, took the Court through many pages of the transcript of the unashamed cross-examination by Mr Heliotis of Mr O. The thrust of much of Mr O’Bryan’s submission was that those questions had nothing to do with the sufficiency of compliance with the subpoena. I agree.
Mr O’Bryan submitted that the Court should adopt the practice described in Trade Practices Commission and Arnotts Limited (No 2) (supra). He submitted that there was no evidence that there had been any attempt to ensure compliance from the wife through the Court’s processes. I agree that if such a course had been taken by the intervener, the subpoena process would be an abuse of process because it would have been a substitute for discovery. This submission on behalf of Mr O however was put after the event. There are two significant points to be made here. First, the registrar, as the Court issued the subpoena. The discretion was exercised and I have not been asked to review that process. Having regard to the evidence of Ms NX and my earlier reasons for judgment, I am not satisfied that this process was being used as a substitute for discovery. The second point is that this Court has always operated on the basis that all parties to the litigation are provided with a copy of a subpoena at the time of it being issued so there can be no suggestion of surprise but also that it gives the parties an opportunity to object to the admissibility into evidence of any documents released for inspection. That process gives rise to the safeguards earlier mentioned as described by Campbell J. At the point at which the subpoena to Mr O and also to Mr HH Martin were called on, no objection had been taken to the fact that the calling on of the subpoena had been undertaken. Accordingly, I find there is no merit in the submission put.
Mr O’Bryan submitted that the Court had power to set aside the subpoena as part of its inherent power to regulate the use of its processes. He observed that it was important that the Court prevent its processes being abused. Those categories of abuse usually fell into three categories (see Rogers v R (1994) 181 CLR 251per McHugh J at 286). He submitted that on the basis of an examination of the transcript, the predominant purpose of Mr Heliotis was to obtain admissions against Mr O’s own interests and to obtain evidence against the interests of the husband and wife. Mr O’Bryan submitted that in addition to the inference to be drawn from the transcript, a letter written by X Firm to the solicitors for Mr O in September 2014 indicated that it wanted to seek costs against Mr O. He observed the letter said:
Having regard to his role as broker of the collusive settlement between the husband and wife.
It was submitted therefore that this was the real reason behind the cross-examination. That is, that Mr O had been a party to a collusive settlement between the husband and wife.

The submissions of Mr Glick QC

Mr Glick submitted that whilst there was an interplay between chapter 13 and chapter 15 of the rules, it was not within the scope of a subpoena to seek information. The function of a subpoena is only to produce documents. He submitted that the Law of Australia was that there was no power to permit the cross-examination as undertaken by Mr Heliotis. I am not convinced that is correct. It was undoubtedly the position of the husband and counsel for Mr O that leading of evidence or indeed cross-examination of a witness was normally only done at a trial. But s 36 of the Evidence Act indicates that a person who is present “at the hearing of a proceeding” may be ordered to give evidence and produce documents even without a subpoena. In my view, a technical approach to how evidence is put before the Court is not mandatory. Mr Glick examined rule 15.71 but that rule required the Court’s invitation and he submitted that it should only be used in rare circumstances. Thus, he submitted, to the extent that if there were an absence of a specific procedure, rule 1.09 could not be used in such a situation. He submitted that Mr O was attacked at a time when he was unprotected and consequently, the probing questioning was not proper.
In a written submission filed on 18 September 2014, Mr Glick QC made the following submissions:
·Compliance with a subpoena to produce documents was not to be tested by the issue of a subpoena to give evidence. If that subpoena was issued, it should be set aside as having been issued for an improper purpose;
·The Court could find the improper purpose in this case having regard to the questions that had been asked;
·A subpoena to give evidence was normally only to be issued for the purposes of a person giving admissible evidence at a trial; and
·It was an open question upon which a decision was not necessary whether evidence to obtain information could be obtained by subpoena to give evidence before trial to enable another witness to give admissible evidence at trial.
In respect of the last point, Mr Glick submitted that it was not necessary for me to decide but he pointed to the decision of La Poer Trench J in Faden and Faden (No 3) [2011] FamCA 897. Although perhaps not necessary to deal with the issue as submitted by Mr Glick, this decision is one at first instance after the 2009 amendments to the rules. It was comprehensively argued before La Poer Trench J.
His Honour observed what I have already mentioned that the Family Law Rules are silent as to when subpoenas to give evidence may be returnable. His Honour observed that rule 15.17 did not place any limitation on the power of the Court to require a stranger to the proceedings to give evidence but the Court had to balance the intrusion of privacy of a stranger to the proceedings against the utility of providing necessary information to properly determine the matter between the husband and the wife. The evaluation of those competing interests was where the Court had to exercise its discretion. His Honour found that the Court did have the power and importantly, it was “crucial information” in determining the “asset pool of the parties”. However, his Honour found flaws in relation to the form of the subpoena issued and the failure to provide conduct money and therefore did not require further compliance.
Mr Glick submitted that Australian authority spoke with one voice namely that general cross-examination intended to challenge credit or to establish that, in the ordinary course of affairs, certain documents would likely exist, was not permissible. He quoted from Quach (supra) as outlined earlier. Much of Mr Glick’s submission was consistent with that of Mr O’Bryan and Dr Collins. Much of it focussed on the issue of challenging a subpoenaed person about compliance. He turned to the second of the issues to which I have referred and said:
If a party requests the Court to issue a subpoena for the specific purpose of obtaining necessary information so as to enable another witness to give relevant admissible evidence at a forthcoming trial, that purpose must be announced and expressed as the foundation reason for the issue of a subpoena to give evidence. The parties could then be heard and the Court would be able to determine the question of “power” and “discretion” and to make necessary directions.
No authority was put for that proposition but one may presume that the issue comes down to one of natural justice and giving all parties to the litigation, an opportunity not only to hear the evidence but to test it. There are a number of problems with the submission. First, I do not accept there is a requirement that all parties have the right to make submissions to the registrar tasked with the responsibility of deciding whether to exercise the discretion to issue the subpoena. The opportunity to make a challenge comes at the return date of the subpoena. All parties are aware of the return date because they should have been provided with a copy of the subpoena at the time of its issue. Chapter 15 of the Rules provides an opportunity for a party to the proceedings so long as they have sufficient interest in the subpoena, to object to the release of the documents and if necessary, to submit that the subpoena should be set aside. Specifically, in this case, on the return date of the subpoena to give evidence which is now the subject of these reasons, solicitors and counsel were present so there can be no suggestion that no-one knew that this subpoena went beyond the question of just the production of documents. It may have been that parties concluded that the pursuit was only about documents and forensic decisions were made accordingly not to participate. I have some difficulty with understanding why the decision was made not to hear the evidence of Mr O but I am also not aware of what, if any, discussions took place between counsel. To the extent that no discussions took place, this is not a case where it could be said that anyone was oblivious to what the intervener was pursuing. The whole issue of an allegation of fraud had clearly been on the table for many months.
It is for the Court to satisfy itself as to the power not only to issue the subpoena but also to hear the evidence. In this case, the power was there. It can be found in both rule 15.17 and, to the extent there is doubt about the procedure, rules 1.09 and 1.10. As for the extent of the cross-examination, Mr Glick referred to the transcript in which I asked senior counsel for the intervener what the purpose was for the “cross-examining”. The transcript revealed that Mr Heliotis responded:
We’re going to ask your Honour to work around the rules a little rather than issuing warrants etc if he is here and allow us to cross-examine him in a very, very tight field in relation to his non-disclosure.
It may be that the Court was misled and, as Mr Glick orally submitted, the Court should be able to rely upon counsel not only to be assisted but not to be misled. The transcript also reveals that Mr Heliotis at the end of the day confirmed that he had gone further than he had intended.
Throughout the hearing, I inquired on a number of occasions of senior counsel for the intervener (and indeed made rulings over objections by Mr Puckey of counsel for the husband in the absence of Mr Glick) about the purpose of the questions and was regularly assured that it was the pursuit of documents.
Mr Glick submitted that the appropriate order was that set out by Hamilton J in Lewis v Nortex Pty Ltd (supra) that the evidence not be accepted as evidence in the principle proceedings. In my view, it would be premature for that evidence to be excluded. It may be that that evidence is never led. I do not intend to speculate. To the extent that it is ultimately submitted that the evidence was improperly obtained, the general discretion to limit the use of evidence can be found in s 135 of the Evidence Act. That provision says:
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a)      be unfairly prejudicial to a party; or
(b)      be misleading or confusing; or
(c)      cause or result in undue waste of time.
Section 136 also provides:
The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:
(a)      be unfairly prejudicial to a party; or
(b)      be misleading or confusing.
All parties can have the opportunity to decide at a trial whether that is a course of action that they intend to follow.

The submissions of the intervener

The intervener by submissions on two occasions submitted that the controversial subpoena followed on from two separate subpoenae and that it was common ground that Mr O had not complied with his obligations pursuant to the earlier orders. In respect of the “examination” of Mr O, it was submitted that the intervener had acted properly in issuing and seeking to enforce the earlier subpoenae. It was submitted that setting aside those documents now would serve no purpose given that Mr O had complied and the intervener was not seeking further production of documents. It was submitted that there was no need for any order in respect of the evidence for the trial in the form that I have indicated above in the submissions of Mr Glick and Mr O’Bryan because:
There is no suggestion that the evidence was received as evidence in chief at the trial of the proceedings.
It was submitted that to the extent that Mr O made “admissions”, they could not be withdrawn or recast. It was submitted therefore that those “admissions” were a matter for the trial judge. For the reasons I have earlier articulated about s 135 of the Evidence Act, I agree.
As for the complaint about the width of the subpoenae, counsel for the intervener pointed to the subject matter of the proceedings and Mr O’s involvement. It was submitted that there was no suggestion by Mr O’s counsel that the documents that he ultimately produced were anything other than relevant. Mr O’Bryan conceded that there was no issue about the GG documents now being returned to him and nor could they be having regard to the very purpose for which the subpoenae were originally issued.
Counsel for the intervener justified the issuing of the subpoenae on the basis that the intervener had taken reasonable steps to obtain the documents and had been met with obfuscation and/or denials. Having regard to the process that had taken place over the preceding eight months, and what I have described as the path that I have been required to follow in terms of determination, I agree with that submission.
Counsel for the intervener then submitted that there was no doubt about the Court’s power to require a named person to attend for oral examination in relation to the question of compliance with the requirement to produce documents. Bearing in mind what I have earlier said about the discretionary nature of the issue, I agree with that submission.
Counsel for the intervener turned to the question of the improper purpose allegation. It was suggested that the process culminated in Mr O producing documents which would not otherwise have been produced but for the examination in what was described as “an appropriately robust fashion”. I am not in a position to make any finding as to why Mr O took so long to produce the documents and indeed, why further documents were produced subsequent to the first day of the return of the subpoena. It was submitted on behalf of the intervener that any authorities of other jurisdictions that circumscribed the manner in which the process would be undertaken, should not be applied because this Court’s jurisdiction depended upon a full and frank disclosure by all parties for the effective discharge of its statutory powers. There is substance to that submission.
Specifically in relation to the power to conduct an oral examination, counsel for the interveners submitted that there were two sources of power. First was s 34 of the Family Law Act and the second related to the Court’s inherent power to issue such writs as it saw fit. A further source of power was identified as rule 15.71.
Section 34 of the Act provides as follows:
(1) The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, and to issue, or direct the issue of, writs of such kinds, as the Court considers appropriate.
That provision was contemplated by the Full Court in Re Z (1996) 20 Fam LR 651. Some caution may be necessary in relation to that authority having regard to the appeal from that decision to the High Court of Australia (see Northern Territory and GPAO (1999) CLR 553).
Section 38 of the Act provides that the practice and procedure of the Court shall be in accordance with the regulations and the standard Rules of Court. Section 38(2) provides:
(2) In so far as the provisions applicable in accordance with subsection (1) are insufficient, the Rules of the High Court, as in force for the time being, apply, mutatis mutandis , so far as they are capable of application and subject to any directions of the Court or a Judge, to the practice and procedure of the Court.
Nothing in the High Court Rules nor in the Family Law Rules provides any legal restriction other than that permission needs to be given for the issuing of a subpoena presumably because it is a court order addressed to (usually) a non-party to the proceedings. I have addressed the issue of discretion and how a registrar can undertake that task.
Whilst counsel for the intervener indicated that the sources of power were as I have described them above, it is the Rules of the Court that govern practice and procedure. Rule 1.09 says that if the Court is satisfied that there is no practice or procedure, it can make such orders as are necessary. That rule is also replicated in rule 6.01 of the High Court Rules. The Court in rule 1.12 may of its own initiative dispense with rules before or after the occasion for compliance with the rules arises. When one looks at Rule 1.12(3) is clearly discretionary.

Before a court should depart from the process set out in the specific rules, it must be satisfied that there is no practice or procedure. The parties other than the interveners would argue that there is a practice and procedure in all other courts and that it is the law of Australia and should be followed. Having regard to the peculiar nature of the family law jurisdiction and the matters to which I have earlier referred which often require interlocutory relief, I am not convinced that the laws of Australia are so proscriptive as to preclude the process that had been undertaken in respect of Mr O. The use to which that information may be put, is an entirely different question. I have already referred to s 135 of the Evidence Act. To some extent, the same protection and discretion to be exercised in that provision is guided by s 41 of the Evidence Act which is headed “Improper Questions”. I also refer to s 26 of the same Act. Section 41 relates to the questioning of the witness at a particular time and I raise it now in case some further question arises as to whether s 135 should be applied. For my own part, I am satisfied that whilst the cross-examination was robust, senior counsel for the intervener did not transgress such as would have required intervention as contemplated in s 41. The submission on behalf of the interveners was that it could not be the law that an examining counsel was simply obliged to accept the witnesses’ assertions and denials as to the existence of documents at face value and move on. Bearing in mind the authorities and particularly those articulated by Brereton J to which I have referred, that is exactly what the other parties have submitted. It is not necessary for me to determine the answer to that question definitively.
In my view the matter comes down to two points. If there is not a clear procedure in the rules, the provisions of rule 1.09 can be applied. The second is that if the procedure then dictated is one of an oral examination, the provisions of the Evidence Act apply.
The intervener’s submissions then dealt with the fact that the process undertaken by its counsel had been justified by saying that:
·In determining whether a particular question, or line of questioning is appropriately directed to the pursuit of relevant and admissible documents, the Court is not obliged to shut its eyes to demonstrably fraudulent conduct, flagrant misuse of its processes and a continuing court of contumacious non-compliance with orders for the production of documents; and
·The Court has an implied power to protect the integrity of the judicial process to ensure that its ability to enforce rights and liabilities subject to the law was not impaired.
There is no basis for me to accept the first of those two submissions. I have not made any finding of fraudulent conduct on the part of the husband and/or the wife. Nor, having regard to the answers given by Mr O, have I, nor have I been asked to, find that he was a party to any fraudulent conduct. Those matters need to be tested comprehensively at trial. I am neither opening nor closing my eyes to issues of fraudulent conduct as described. Indeed, as O’Ryan J said in LGM and CAM [2008] FamCA 185 at 199:
[It] is the trial judge’s duty to ensure all parties have a fair trial. Most relevantly, the trial judge must so exercise his (or her) discretion in and about the examination and cross-examination of witnesses so that a fair trial is assured.
Whilst clearly this was not a trial in the strict sense, my function was to permit the subpoenaed person to be asked questions all of which, at the time, were said to be connected with documents that the intervener had expected to be in existence and which had not been produced. A fair trial for the intervener as well as the husband and wife, must be one in which they have every opportunity to call evidence which will get to the bottom of the matter so that justice is done for all. The protections for the witness, as I have already indicated, lie in the Evidence Act.

Outcome

In my view, there is no basis for me to set aside the subpoenae. I propose to leave the issue of the admissibility of any evidence from or arising from the examination of Mr O, to be an issue for trial.

I certify that the preceding eighty seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 7 November 2014.

Associate:

Date: 7 November 2014