Merhi and Merhi and Ors (No. 3) - [2018] FamCA 961

FAMILY COURT OF AUSTRALIA

MERHI & MERHI AND ORS (NO. 3)

[2018] FamCA 961

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Where there are objections to a number of subpoenas on the grounds of relevance, fishing and abuse of process – Consideration of whether the production of documents serves a legitimate forensic purpose and whether “it is on the cards” that the documents requested would have relevance to the issues in the case – Where the subpoenas concern documents which relate to the estate of the husband’s father – Where the husband’s father has lost testamentary capacity – Where the Court is satisfied that the subpoenas relate to relevant material and do not amount to fishing or an abuse of process.

Family Law Act 1975 (Cth) s 79

Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85
Holland v Sammon (1972) 4 SASR 1
Hunt v Russell and De Pinto (1995) 63 SASR 402
National Employers’ Mutual General Association v Waind and Hill [1978] 1 NSWLR 372
R v Baines [1909] 1 KB 258
Sadek and Ors & Hall and Anor (2015) FLC 93-634; [2015] FamCAFC 23
Unitingcare - Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476; [2011] FamCAFC 159
White HM and Tulloch EM v White IW (1995) FLC 92-640
X Pty Ltd and Ors & Merhi [2015] FamCA 622

APPLICANT:

Ms Merhi

FIRST RESPONDENT:

Mr G Merhi

SECOND RESPONDENT:

P Pty Ltd

THIRD RESPONDENT:

Y Pty Ltd

FOURTH RESPONDENT:

Mr E Merhi

FILE NUMBER:

SYC

511

2014

DATE DELIVERED:

21 November 2018

PLACE DELIVERED:	Sydney
PLACE HEARD:	Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

8 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richardson SC and Mr May

SOLICITOR FOR THE APPLICANT:

Barkus Doolan

COUNSEL FOR THE FIRST RESPONDENT:

Mr Cummings SC

SOLICITOR FOR THE FIRST RESPONDENT:

Broun Abrahams Burreket

COUNSEL FOR THE SECOND, THIRD AND FOURTH RESPONDENTS:

Mr Campton SC

SOLICITOR FOR THE SECOND, THIRD AND FOURTH RESPONDENTS:

York Law

COUNSEL FOR ENTITIES OBJECTING TO SUBPOENAS:

Mr A Coleman SC and Mr Gray

SOLICITOR FOR THE ENTITIES OBJECTING TO SUBPOENAS

HWL Ebsworth Lawyers

Orders

The subpoenas issued on 4 October 2018 to the following addressees:
(a)Bank 1;
(b)Bank 2;
(c)Bank 3;
(d)Bank 4;
(e)Bank 5;
(f)Bank 6;
(g)Bank 7;
(h)Australia & New Zealand Banking Group Limited;
(i)National Australia Bank;
(j)Bank 7;
(k)Bank 8;
(l)Commonwealth Bank of Australia;
(m)Westpac Banking Corporation; and
(n)Bank 10;
are set aside insofar as the subpoenas seek documents within the description “credit card applications and supporting documents”.
That other than as provided for in these orders all objections to subpoenas issued to the following entities and filed on 4 October 2018 be dismissed:
(a)F Pty Ltd;
(b)DD Pty Limited;
(c)EE Super;
(d)Bank 1;
(e)Bank 2;
(f)Bank 3;
(g)Bank 4;
(h)Bank 5;
(i)Bank 6;
(j)Bank 7;
(k)Australia & New Zealand Banking Group Limited;
(l)National Australia Bank;
(m)Bank 8;
(n)Bank 9;
(o)Commonwealth Bank of Australia;
(p)Westpac Banking Corporation; and
(q)Bank 10.
The objections to the subpoena filed on 1 November 2018 and issued to X Pty Limited ATF the Mr H Merhi Trust are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Merhi & Merhi and Ors (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC511 of 2014

Ms Merhi

Applicant

And

Mr G Merhi

First Respondent

And

P Pty Ltd
Second Respondent

And

Y Pty Ltd
Third Respondent

And

Mr E Merhi
Fourth Respondent

REASONS FOR JUDGMENT

These are interlocutory proceedings instituted by objections to subpoenas issued at the application of the wife. What follows are the reasons for the orders set out above.
The substantive proceedings are for property settlement between a wife and husband who are both 53 years of age. They were married in 1998 and separated on 3 March 2013. They were divorced on 18 July 2018.
The property settlement proceedings are listed for final hearing over 10 days commencing on 25 February 2019.
Another significant interlocutory issue is the wife’s application to vacate the final hearing and to adjourn the trial pursuant to s 79(5) of the Family Law Act 1975 (Cth) (“the Act”) for several years. That application will be heard on 23 November 2018.
On 29 October 2018 I heard interim applications in respect of orders for discovery and disclosure sought against the husband and his sister, who is the case guardian for their father, and about the disposition of the net proceeds of sale of a property owned by the husband at R Street, Suburb S (“the Suburb S property”). Reasons for judgment were delivered in relation to those applications on 7 November 2018.

Objections to Subpoenas

The objections are made by the second and fourth respondents, who are in one interest, and by 11 entities in the Merhi Group, who are also in one interest on this issue. Those entities are referred to in their submissions as the Merhi Group Objectors and I will take a similar approach.[1]
[1] Submissions filed on 5 November 2018.
The objections were mentioned at the interlocutory hearing on 29 October 2018 and for reasons given that day, and with the cooperation of the interested parties, the hearing of that issue was adjourned to 8 November 2018 at 4.30 pm. The husband was not interested in the issue and he and his lawyers were excused.
At the conclusion of the hearing on 8 November 2018 leave was given to the Merhi Group Objectors, who are represented by Mr Coleman SC, to file and serve within seven days any evidence and/or further submissions arising from evidence relied on by the wife of which no notice was given to those entities prior to the oral submissions of her counsel. That leave was appropriate because the Merhi Group Objectors are not parties to the substantive proceedings and therefore had no notice of, or access to, all of the documents relied on and they were excused from part of an earlier hearing at which at least some of that evidence was identified. Apart from that leave, on 8 November 2018 judgment was reserved.
On 15 November 2018 the Merhi Group Objectors filed an affidavit of Mr F together with an Outline of Supplementary Submissions of the Objectors.
Of the subpoenas to which the objections relate, there are 14 subpoenas to financial institutions. The operative words in those subpoenas are in similar terms. Each seeks:
…
2.A copy of the following documents:
(a)credit assessments;
(b)statements of financial circumstances and supporting documents;
(c)applications for loans or finance and supporting documents;
(d)credit card applications and supporting documents;
(e)valuations of real property;
in relation to the following:
(f)Mr E Merhi born … 1934 whether solely or jointly with any other person;
(g)Ms U Merhi born … 1938 whether solely or jointly with any other person;
(h)The private companies listed in Attachment “A” to this Subpoena;
for the period 1 January 2016 to the date of this Subpoena.
The companies listed in Attachment A as referred to in the schedule of the subpoena are as follows:
(a)Mr H Merhi Pty Limited;
(b)X Pty Limited;
(c)P Pty Ltd;
(d)A Pty Limited;
(e)D Pty Limited;
(f)FF Pty Limited;
(g)GG Pty Limited;
(h)B Pty Limited;
(i)Merhi Bros Pty Limited;
(j)Merhi Group Holding Company Pty Limited;
(k)C Pty Limited;
(l)Merhi Bros Holdings Pty Limited;
(m)HH Pty Limited;
(n)Y Pty Ltd;
(o)II Super Pty Limited;
(p)Merhi Bros Trading Co Pty Limited;
(q)JJ Pty Limited;
(r)KK Pty Limited;
(s)Merhi Group of Companies Pty Limited;
(t)LL Pty Limited;
(u)MM Pty Limited;
(v)NN Pty Limited;
(w)OO Pty Limited;
(x)PP Pty Limited;
(y)QQ Pty Limited;
(z)RR Pty Limited;
(aa)SS Pty Limited;
(bb)TT Pty Limited;
(cc)UU Pty Limited;
(dd)VV Pty Limited;
(ee)WW Pty Limited;
(ff)XX Pty Limited;
(gg)YY Pty Limited;
(hh)ZZ Pty Limited;
(ii)Merhi Group Pty Limited;
(jj)AB Super Pty Limited;
(kk)BC Pty Limited; and
(ll)CD Pty Limited.
During the course of oral submissions the wife’s counsel conceded that insofar as the subpoenas sought documents in relation to the companies listed in attachment A, the subpoenas could be varied to delete the requirement for “credit card applications and supporting documents”. I will set aside the affected subpoenas to that extent.

The Objections

Objections were made to 17 subpoenas by the second and fourth respondents who were represented by Mr Campton SC. The subpoenas in question were addressed to:
(a)F Pty Ltd;
(b)DD Pty Limited;
(c)AB Super Pty Limited;
(d)Bank 1;
(e)Bank 2;
(f)Bank 3;
(g)Bank 4;
(h)Bank 5;
(i)Bank 6;
(j)Bank 7
(k)Australia & New Zealand Banking Group Limited;
(l)National Australia Bank;
(m)Bank 8;
(n)Bank 9;
(o)Commonwealth Bank of Australia;
(p)Westpac Banking Corporation; and
(q)Bank 10.
All of those subpoenas were issued on 4 October 2018. As I understood the submissions on behalf of the second and fourth respondents, their objections were to all of the categories of documents sought.
Objections were also made in respect of all but one of those subpoenas by the Merhi Group Objectors.[2] The Merhi Group Objectors are:
[2] As the written submissions filed 5 November 2018 state, the objection lodged in respect of a subpoena to AB Super Pty Ltd is not pressed.
(a)FF Pty Limited;
(b)Merhi Brothers Pty Limited;
(c)D Pty Limited;
(d)GG Pty Limited;
(e)X Pty Limited;
(f)Merhi Bros Holdings Pty Limited;
(g)B Pty Limited;
(h)C Pty Limited;
(i)Merhi Group Holding Company Pty Limited;
(j)A Pty Limited; and
(k)F Pty Limited.
In addition to the abovementioned 16 subpoenas, the Merhi Group Objectors also object to a subpoena that issued on 1 November 2018 to X Pty Limited ATF the Mr H Merhi Trust.
On the objection forms, individual subpoenas were said to be objected to by some or all of the Merhi Group Objectors and others by only one of those companies. Nothing turns on those circumstances.
The objections of the Merhi Group Objectors were to all of the categories of documents sought insofar as they were expressed to relate to any of the objecting entities. That is to say there was no category of documents which related to any of the 11 entities comprising the Merhi Group Objectors that was not the subject of their objection. The order sought by the Merhi Group Objectors is identified in the Outline of Supplementary Submissions to the effect that the subpoenas issued to the financial institutions as well as the subpoenas issued to DD Pty Limited and F Pty Limited, be varied to remove the name of each of the Merhi Group Objectors.
As to the bases for the objections, the Notices of Objection identify a relevance objection to each of the subpoenas and in relation to some there are additional objections based on the argument that the subpoenas represented an abuse of process and/or fishing. I take it from the Outline of Submissions of the Merhi Group Objectors that notwithstanding what is contained in the Notice of Objection filed in respect of the individual subpoenas, they also object to all of the subpoenas on those additional bases.
It is submitted on behalf of the Merhi Group Objectors that the subpoenas to the financial institutions are an exercise in fishing. It is submitted that the wife has adduced no evidence that any of the 11 entities making up the Merhi Group Objectors have dealt with any of the financial institutions in the period or manner specified, nor how (even assuming that there was such an event) that event is relevant to the dispute between the husband and the wife. It is submitted that the wife has not specified with reasonable particularity the documents which are required to be produced.
By way of oral submissions, it was further argued that the orders of 7 November 2018 addressed some or all of the same issues to which the subpoenas are said to go and that those orders should be given time to operate. The orders in question required the husband and the husband’s father, for whom the husband’s sister is case guardian, to provide disclosure including certain documents.
It was also argued that the subpoenas were an abuse of process because they are similar or make similar demands as subpoenas which were rejected on objection by McClelland J in these proceedings in 2015. It is submitted that seeking the issue of the subpoenas to the financial institutions is an impermissible attempt by the wife to circumvent the decision of McClelland J and that amounts to an abuse of process.
The Outline of Supplementary Submissions made on behalf of the Merhi Group Objectors, serves to reinforce some of those complaints. It is submitted that none of the further evidence relied on by the wife sufficiently identifies a link between the documents described in the subpoenas and the subject matter of the proceedings. It is submitted that there is no evidence of the husband having received a distribution from a Merhi Family Trust nor that he has a loan account or has otherwise borrowed from such a trust. It is submitted that the subpoenas objected to represent an impermissible search for information that should have been provided in discovery by parties to the proceedings and/or by the husband’s uncles in response to subpoenas directed to them. It is also submitted that even if the documents establish that the husband’s parents have interests in any of the Merhi Group Objectors, there is no evidence to suggest that those interests would be transferrable on their death. It is submitted that at the highest, the documents caught by the subpoenas could only assist in identifying the value of the benefit that may be conferred on the husband by reason of his interest in his father’s estate. That information, it is submitted, is not something that the Court needs to determine for the hearing on 23 November 2018 nor would it be able to do so. On that basis, the argument in the outline runs, the only relevance the documents sought may have is to the final hearing.
For the second and fourth respondents the objections include relevance and how that weighs against the invasion of the privacy caused to those respondents by the subpoenas. It is submitted that the documents called for by the subpoenas that are objected to do not even reach the low bar established for relevance in these cases. It is submitted that the wife cannot establish that it is on the cards that the documents called for would have relevance to the issues in the case. It is submitted that the s 79(5) proceedings require only broad information about the value of assets. It is submitted that the categories of documents called for by the subpoena are exceptionally wide. The second and fourth respondents join in the complaint about fishing.

The Law about Subpoenas

I apprehend that there is no controversy between the parties in respect of the relevant law.
A subpoena to produce is a solemn document. When issued to a non-party to proceedings, it represents an ex parte order for production, under threat of penalty. For that reason care must be taken in issuing subpoenas and care must be taken in drawing their terms.
In Sadek and Ors & Hall and Anor (2015) FLC 93-634 (“Sadek”) the Full Court was dealing with an appeal against the decision of a trial judge to reject objections in respect of subpoenas related to the estate of the wife’s father. The wife’s father had died in 2009 and as at the time of the hearing before the trial judge in 2014, his estate had not been fully administered and the wife knew nothing about having any interest in the estate. The Full Court said at 80,091:
17. In the well-known decision of National Employers Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372, Moffitt P identified the three steps in the procedure of having a third party bring documents to court pursuant to a subpoena and their use thereafter.
18. The first step is the witness obeying the subpoena by bringing the documents to the court. At that stage the court should determine any application of the witness to the subpoena and any dispute concerning the production of the documents to the court. His Honour gave examples of the circumstances in which an application might be made and as one such example said at 382:
A witness might argue the documents must be sought for some undefined spurious reason, as they have no conceivable relation to the proceedings. The court would jealously consider any of such submissions having regard to the invasion of the private rights of the stranger occasioned by the operation of the subpoena.
19. The second step identified by Moffitt P was the consideration of the court granting access to the documents after their production to the court. At 384 Moffitt P said:
It is true that, in the exercise of the power in relation to the subpoena, the invasion of the rights of a third party have been jealously guarded. It is accepted that the documents should not go beyond the judge against objection of the owner, unless there is valid reason to do so. It is clear that it can only be legitimate to do so, so far as it is necessary in the proper conduct of litigation. It is difficult to see why to do that which is “requisite for the purpose of justice” should be restricted by some arbitrary limit. Of course, the concept of what is requisite for the purpose of justice, and how the compromise between the requirements of justice between litigants and the rights of a stranger should be met, may change and, indeed, be different now from the concepts of last century, just as concepts as to what is appropriate between parties has changed in favour of fuller disclosure of relevant matters. …
…
So as far as factual matters are concerned, the proper conduct of the litigation can only be that which fairly leads to the introduction of all such evidence as is material to the issues to be tried, and the testing of that evidence by the accepted procedures of the court. The only legitimate purpose of requiring the production, and permitting the inspection, of a stranger’s documents can be to add, in the end, to the relevant evidence in the case.
20. The third step is the admission of such evidence as may be admissible into evidence.
21. In another equally well-known decision, namely Hatton v The Attorney—General (Cth) (2000) FLC 93-038 at 87,606, the Full Court said “the present state of authority is such that lack of apparent relevance will be a sufficient ground in itself to set aside a subpoena”.
22.From these authorities the appellants draw two propositions. The first is that in considering an objection to a third-party subpoena, the court is required to take into account the requirement of necessity. The second proposition is that if there is sufficient disclosure, as in the present case, of the nature and extent of the wife’s benefit under the will, the document itself then ceases to have apparent relevance or any relevance.
23. It is submitted that her Honour, in paragraphs 39 to 41 of her reasons referred to earlier, did not take these propositions into account.
24. Given that the appellants accept that the documents sought in the subpoenas had apparent relevance to the proceedings, the subpoenas were appropriately issued. It was appropriate for the husband to serve the subpoenas upon the appellants because the husband had no other means of identifying what (if any) interest the wife had in her late father’s estate. It is clear that her Honour had regard to this by finding that the will was a document which had “forensic relevance” and “sufficient clear connection to the issues to be determined in this case to require its production and inspection”. In doing so her Honour did not depart from the principles set out in Waind and in Hatton & The Attorney General.
25. A stranger’s documents will be made available to the parties in the proceedings where that is requisite for the purpose of justice. Although, as Moffit P said, the documents will be made available so far as is necessary for the proper conduct of the litigation, that necessity will generally be met by the documents having apparent relevance to the issues in the proceedings. As was pointed out by his Honour, concepts of disclosure, and particularly its extent, vary. In this court there is a heavy obligation on parties in property cases to make complete disclosure. The requirements of justice, in those cases, may well require a stranger to disclose those documents more fully than in other courts where there are lesser requirements for disclosure.
26. The nature and extent, if any, of the wife’s interest in her late father’s estate is clearly a relevant issue in the property proceedings. As the wife was unable to provide any information as to what interest she might have in that estate, the husband was forced to look elsewhere for that information. It was in the interests of justice for that relevant information to be provided to the husband. In short, it is necessary that relevant information, in this case, documents, be made available. It follows that the appellants’ submission that necessity informs relevance but is a separate ground to relevance cannot be accepted.

In White HM and Tulloch EM v White IW (1995) FLC 92-640 (“White”) the Full Court of this Court similarly discussed the use of subpoena to obtain information in relation to a will of a parent of one of the parties. It was stated by the Full Court commencing at 82,463:
The central point of proceedings under s. 79 remains the division of the property of the parties to the marriage and thus the essential concentration should be upon the financial circumstances of those parties. This is emphasised by the circumstance that the thrust of almost all of the matters in ss. 79 and 75(2) is to direct the Court to consider various aspects relating to the parties themselves (or their children). As a matter of principle and day to day management of trials, it would not ordinarily be appropriate to perform that exercise largely by detailed reference to the property of a third party or to require a third party to make a detailed disclosure of his or her testamentary intentions and financial circumstances. It would be highly undesirable that in a property proceeding between husband and wife significant amounts of time should be devoted to a detailed examination of such matters.
…
It is ultimately a question of fact and degree. During the course of argument a number of obvious examples at each end of the spectrum were referred to. In a case where the testator had already made a will favourable to the party but no longer had testamentary capacity and there was evidence of his or her likely impending death in circumstances where there may be a significant estate, and where there was a connection to s. 75(2) factors, it would be shutting one's eyes to realities to treat that as irrelevant. On the other hand, the bald assertion that one of the parties has an elderly relative who has property and is or is likely to benefit that party is so speculative that it would be inappropriate to contemplate it as relevant in a s. 79 determination, it being too remote to affect the justice and equity of the case in any worthwhile way.
Subpoenas must be used for a bona fide forensic purpose. In R v Baines [1909] 1 KB 258 (“Baines”) Bigham J stated the following at 261:
There can be no doubt as to the jurisdiction of the Court to interfere where it is satisfied that its process is being used for indirect or improper objects. It must not be supposed that the position which the applicants occupy affords them any privilege. They stand in the same position as any other of His Majesty’s subjects. But the Court has to inquire whether its process has been issued against them with the object and expectation on reasonable grounds of obtaining from them evidence which can be relevant.
In Baines, Walton J agreed with the reasons of Bigham J and added as follows at 262:
This case must not be taken as a precedent establishing any rule that a person can, by swearing that he can give no relevant evidence, get a subpoena set aside… But these subpoenas are not bona fide required for the purpose of obtaining any evidence that can be relevant.
In Holland v Sammon (1972) 4 SASR 1 Walters J referred to the decision of Baines and stated the following at page 3 in relation to setting aside a summons to a witness:
And the decision in R v Baines may be drawn upon as support for the proposition that this Court has jurisdiction to interfere where it is satisfied that the process of an inferior court is being used “for indirect or improper objects”. No doubt an inquiry must be made whether the process, which is called into question, is being used with the object and expectation on reasonable grounds of obtaining evidence which can be relevant, or whether the summons requiring the attendance of the witness is being used for any different or ulterior purpose.
Subpoenas must not require the production of documents which only would have a bearing on an issue on an unreal, fanciful or speculative basis.[3]
[3] Cantor J in R v Barton (1981) 2 NSWLR 414 at 420.
Subpoenas must not be used to require of third parties the obligations of discovery that are owed by parties to the proceedings. In National Employers’ Mutual General Association v Waind and Hill [1978] 1 NSWLR 372 (“Waind”) it was stated by the Supreme Court at 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… 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.
Subpoenas must not be used for the purpose of fishing for information that the party at whose application the subpoena issued, hopes, but does not reasonably expect, is in existence. In Hunt v Russell and De Pinto (1995) 63 SASR 402 it was considered by Perry J whether a fishing complaint should be determined with reference to the documents produced. It was stated at 408:
Furthermore, I do not think that in a case where the objection taken is that the subpoena, or part of it, is “fishing”, the appropriate procedure is for the judge at the outset to take the documents into his or her custody and then to peruse them to see if any of them might be relevant to the proceedings. To countenance such a course would be simply to pass the fishing rod to the judge.
…
Generally speaking, a complaint that a subpoena is “fishing” should be determined by reference to the judge's knowledge and understanding of the case and the description of the documents in the subpoena.
Further discussion continued at 409 as follows:[4]
[4] See Alister v The Queen (1984) 154 CLR 404.
In my view, consistent with the dicta to which I have referred in Alister, a mere “fishing” expedition should not be allowed, and before a court should proceed to inspect the documents sought to be produced, it must be “on the cards” that the documents “will materially assist the defence”, or, having regard to the terms of s 25 of the District Court Act, it must be “on the cards” that the documents sought to be produced will be of “evidentiary value” in the proceedings.
If that test is satisfied, the subpoena is not to be characterised as “fishing” and will not be struck out as bad.
If the subpoena is bad as a mere “fishing” exercise, the court does not have to deal with any objection based on public interest immunity, legal professional privilege or statutory immunity from production. The subpoena is struck out before the stage is reached at which any such objection falls to be considered.
On the other hand, if the subpoena is not bad as “fishing” or otherwise vexatious or oppressive, objections based on public interest immunity, legal professional privilege or statutory immunity from production then fall to be considered. Whether or not, during the course of consideration of any such grounds of objection, the court should view the documents, is a question to be approached in the manner identified in Alister.
In Unitingcare - Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476, Coleman J was sitting as the Full Court in an application for leave to appeal against a decision of the Federal Magistrates Court of Australia (as the Federal Circuit Court of Australia was then known). There the issues turned particularly on the right of the appellant to seek to set aside a subpoena for records of counselling between parties who consented to the production of those records. However, in the following passage, his Honour also addressed the issue of ‘fishing’ by subpoena at 85,856:
68. In reality, and without criticising the ICL, who did not draft the subpoena directed to Unifam, the subpoena can be seen, particularly having regard to the terms of s 10E of the Act, as in the nature of a “fishing expedition”, or request for discovery by a third party.
69. The law in relation to the use of subpoenae as a means of obtaining discovery and inspection is not in doubt. In Hennessy v. Wright (No. 2) (1980) 24 QBD 445 at 448 Lord Esher described the conduct which subsequently gave rise to the concept of a “fishing expedition” as occurring where:
“… the plaintiff wishes to maintain his questions, and to insist upon answers to them, in order that he may find out something of which he knows nothing now, which might enable him to make a case of which he has no knowledge at present.”
70. In Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574–5, Jordan CJ said:
“Where the subpoena is addressed to a party, it is still necessary that it should state with reasonable particularity the documents which are to be produced: Attorney-General v Wilson 9 Sim 526 at 529; Earl of Powis v Negus [1923] 1 Ch 186 at 190. It is true that a party, unlike a stranger, can be required to give discovery; but it is not legitimate to use a writ of subpoena duces tecum as a substitute for an application for discovery of documents, or as an alternative to an application for further and better discovery. Discovery applications should be made at the proper time and place. It would greatly impede the trial of actions at nisi prius, and impose an intolerable burden upon the presiding judge, if he were required form [sic] time to time to suspend proceedings and wade for himself through masses of documents for the purpose of endeavouring to determine whether any of them are relevant. Especially is this so when the documents may be called for while the case is still at the stage when it is difficult or perhaps impossible for the judge to know what may become relevant and what may not. In the absence of special circumstances, for example, Griebart v Morris [1920] 1 KB 659, a party is no more entitled to use a subpoena duces tecum than he is a summons for interrogatories, for the purpose of “fishing”, that is, endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all (Hennessy v Wright 24 QBD 445 at 448), or to discover the nature of the other side’s evidence: Griebart v Morris [1920] 1 KB 659 at 666. Even if the documents are specified, a subpoena to a party will be set aside as abusive if great numbers of documents are called for and it appears that they are not sufficiently relevant: Steele v Savory [1891] WN 195.”
71. In National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at 382, Moffitt P said:
“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. This was the reasoning in Small’s case. Of course, discovery as such is otherwise available to a party. It follows that a subpoena can only properly be used for the production of documents described in particular or general terms which does not involve the making of such a judgment.” (footnotes omitted)
72. To the extent that the documents which Unifam may have produced could have come within the terms of s 10E(2), the subpoena does not adequately identify them. It readily could have. There is a material distinction between seeking production of documents which, if they exist, can be readily identified and produced in circumstances where such documents may be admissible in evidence, and seeking the production of unspecified documents in the hope that, when produced, they may reveal something capable of being admissible in evidence. The former course is permissible according to general law, and s 10E of the Act. The latter offends both. Given the terms of s 10E, the subpoena to Unifam, drawn in the terms in which it was, can be seen as oppressive.

Discussion

In relation to objections made in relation to the subpoenas issued to the entities that are not the financial institutions I am satisfied that the subpoenas call for relevant financial records.
The objections made on behalf of the Merhi Group Objectors, and the second and fourth respondents, include a concern that the subpoenas addressed to the financial institutions are in effect, fishing. There is no such objection from the addressees of the subpoena, who would be the persons inconvenienced by that issue. It seems to me that the descriptions in the subpoenas are sufficiently detailed to represent a reasonable demand on the addressees. Of the categories:
(a)      credit assessments;
(b)      statements of financial circumstances and supporting documents;
(c)      applications for loans or finance and supporting documents;
(d)      credit card applications and supporting documents; and
(e)      valuations of real property;
only (b) seemed to me to be potentially vague. I was concerned about that issue in part because of the similarly described document which is a prescribed family law form. I asked learned counsel for the wife whether “statement of financial circumstances” is a term of art and, without complaint across the bar table, I was assured that it is. On that basis the categories should provide no difficulty for the addressee financial institutions. They are all categories of documents that they very likely have and would be able to readily identify within their own records. Further, as a general proposition, they are categories of documents where the author is under an obligation to make an accurate disclosure or to express a candid opinion.
The test of relevance is that the production of documents serve a legitimate forensic purpose and that “it is on the cards” that some useful material within the description in the subpoena will be found. There will be arguments in these proceedings about the import and extent of the link between the interests of the husband’s father and those of his brothers in the financial affairs of the Merhi Group. In the unique circumstances of the frailty of the husband’s father, his provision for the husband is known or knowable. It is on the cards that material within the descriptions (a) to (e) in the financial subpoenas will shed light on the husband’s expectations from his father’s estate. The categories are well adapted to elicit evidence of representations made about the elements for assessing the value of assets and liabilities. The specification of the 38 companies listed in the attachment to the subpoena works to target Merhi Group connections.
There are some similarities between the circumstances in Sadek and in the proceedings before me. In each case the subpoenas were addressed to the value of the estate of a parent to a party to property settlement proceedings and in each case there was said to be a lack of information about the value of the estate. Of course there are also differences in the factual backgrounds of the two cases. In Sadek the parent in question had died but the extent of the interest of the person under the will was less certain than in the circumstances before me. In Sadek the subpoena did not go beyond the financial records of the estate itself whereas in the circumstances before me, the call is for third party records sought to assist in identifying the net asset position of the husband’s father.
It is submitted that the subpoenas are an abuse of process because they are or include similar requirements to those in the subpoenas that were rejected on objection by McClelland J in these proceedings in 2015. On 30 July 2015 McClelland J published reasons for judgment in respect of objections to subpoenas issued at the application of the wife. Among other orders his Honour said in his judgment:[5]
43.I have formed the view that, other than in respect to those companies where the husband either had an interest, held office and/or was an employee, the subpoenas are inappropriate. Essentially, they are speculative in the sense that they are “a train of inquiry” that might assist the wife’s case rather than it being “on the cards” that they will result in the production of documents that will be relevant to the issues in the case. To that extent the subpoenas to those companies amount to “fishing” and should be set aside.
44.I therefore set aside those subpoenas addressed to:
(a)GG Pty Ltd (the second applicant);
(b)Merhi Group Holding Company Pty Ltd (the seventh applicant);
(c)C Pty Ltd (the eighth applicant); and
(d)Merhi Bros Holdings Pty Ltd (the eleventh applicant).
[5]X Pty Ltd and Ors & Merhi [2015] FamCA 622.
As to the subpoenas to companies where the husband either had an interest, held office and/or was an employee, the subpoenas were allowed by his Honour, subject to some amendment as to the breadth of the call made in the respective subpoenas (for example the range of years for which the records had to be provided). Before me there is no complaint about the breadth of the call, in that sense, in any of the subpoenas.
In the hearing before me the wife’s counsel was asked about the relevance of the subpoenas and said that the subpoenas were issued and pressed both in respect of the substantive proceedings for property settlement and for the adjournment application under s 79(5) which is listed for hearing on 23 November 2018.
I do not agree with the submission that by seeking the issue of the subject subpoenas, the wife has sought to circumvent the decision of McClelland J. At the time of the controversy before McClelland J there was no application pursuant to s 79(5) to adjourn the proceedings for several years. In dealing with that application the value of the husband’s expectation from his parents becomes one of the critical issues. Rather than a financial resource, that expectation may crystallise in the period of the adjournment. There have been other changes in the proceedings since July 2015. Sadly, the husband’s mother has died. She left her estate to her husband. In addition, the husband’s father has made a will which includes substantial provision for the husband and having lost testamentary capacity, that will cannot be changed by him.
In the context of those circumstances, the value of the estate of the husband’s father is relevant and the circumstances are different to those that applied when the 2015 rulings were made.
As to the reference to privacy in the submissions made on behalf of the second and fourth respondents, they are parties to the proceedings and therefore have obligations of disclosure. The competing consideration of privacy was discussed in Bruce F McLaren Holdings Pty Ltd & Ors v McLaren, LD and McLaren SF (2000) FLC 93-030 where it was held by the Full Court of the Family Court at 87,490:
50. We accept that the rights of third parties to have their privacy maintained is a consideration to be taken into account when determining whether it is just to require the production of documents. However, that is only one of a number of factors to be taken into account.
51. His Honour clearly took this matter into account when he said:
``I must also have regard to the fact it is intrusive for the Court to make orders that persons who are not parties to proceedings should make such disclosure. On the other hand there is no suggestion that by making such an order I am intruding into the area of commercial in confidence or otherwise causing embarrassment to the other parties.''
52. In any event, the confidentiality of the documents ordered to be produced is protected by s 121 of the Family Law Act 1975. If the applicants were not satisfied with the protection afforded to them by that section, it was open to them to seek orders from the Judge to protect their privacy. Order 20 r 8 of the Family Law Rules provides that an order for the production of documents may be ordered ``subject to such conditions and restrictions as (the court) thinks it proper to impose''. We are not aware of any such application having been made to his Honour.

Similar comments could be made here. I am satisfied that the purpose of the subpoenas is to obtain documents relevant to a case and not to obtain documents to discover whether there is a case. I am satisfied that the application for the subpoenas to the financial institutions was not by way of fishing and is not an abuse of process as asserted by the objecting parties.
Save for the conceded amendment, the objections are otherwise overruled.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 21 November 2018.

Associate:

Date: 21 November 2018