Naumov & Geissler
[2025] FedCFamC1F 132
•28 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Naumov & Geissler [2025] FedCFamC1F 132
File number: SYC 9768 of 2023 Judgment of: CAMPTON J Date of judgment: 28 February 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Objection to subpoena – Where the de facto husband caused a subpoena to be issued to the de facto wife’s solicitors for the production of the file of her previous solicitors who represented her in historical discontinued proceedings – Where the de facto wife objects to the subpoena claiming legal professional privilege – Where the de facto husband contends the de facto wife has waived legal professional privilege – Where waiver is not made out – Subpoena struck out – Where the de facto wife caused subpoenas to be issued to three corporations that have provided loans to corporations of the de facto husband – Where the de facto husband objects to the subpoenas on the basis of abuse of process, relevance, and fishing – Where such objections are not made out – Notices of Objection to subpoena are struck out. Legislation: Evidence Act 1995 (Cth) ss 119, 122
Family Law Act 1975 (Cth) ss 4AA, 44, 90SM
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 6
Cases cited: Alister v R (1984) 154 CLR 404; [1984] HCA 85
Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
Martin & Martin and Anor (No. 2) [2014] FamCA 232
National Employers’ Mutual General Insurance Association v Waind and Hill [1978] 1 NSWLR 372
White & Tulloch & White (1995) FLC 92-640; [1995] FamCA 127
Division: Division 1 First Instance Number of paragraphs: 46 Date of hearing: 28 February 2025 Place: Sydney Counsel for the Applicant: Ms Mariole Solicitor for the Applicant: Super & Super Lawyers Counsel for the First Respondent: Mr Auld Solicitor for the First Respondent: Abbott Delaney Lawyers The Second Respondent: Litigant in person ORDERS
SYC 9768 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS NAUMOV
Applicant
AND: MR GEISSLER
First Respondent
MS GEISSLER
Second Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
28 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The subpoena issued to Super & Super Lawyers at the request of the de facto husband on 14 January 2025 be struck out.
2.The Notice of Objection to the subpoena issued at the request of the de facto wife to B Pty Ltd on 30 January 2025 filed on 6 February 2025 by the de facto husband is dismissed.
3.The Notice of Objection to the subpoena issued at the request of the de facto wife to C Ltd on 30 January 2025 filed on 6 February 2025 by the de facto husband is dismissed.
4.The Notice of Objection to the subpoena issued at the request of the de facto wife to D Ltd on 30 January 2025, filed on 6 February 2025 by the de facto husband is dismissed.
5.The parties have leave to inspect the documents produced on subpoena by B Pty Ltd, C Ltd, and D Ltd.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Naumov & Geissler has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
These reasons determine Notices of Objection to subpoenas to produce documents in proceedings initiated by Ms Naumov (“the de facto wife”) on 20 December 2023 seeking orders for the adjustment of property between she and Mr Geissler (“the de facto husband”) pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”) together with orders for her maintenance.
BACKGROUND
The de facto wife contends that the parties commenced cohabitation in 2007 and affected a final separation in December 2021. There are two children of the relationship, X born in 2009, and Y born in 2011.
The de facto husband contends that the de facto relationship terminated either in May 2017 or March 2018. It is uncontroversial that from his contended date of separation until December 2021, both he and the de facto wife continued to reside in a property at E Street, Suburb F (“the Suburb F property”). He vacated the property in December 2021 upon the making of an Apprehended Violence Order in the Local Court prohibiting and restricting his behaviour for the protection of the de facto wife and children.
A final order was made restricting and prohibiting the de facto husband’s behaviour in mid‑2023 for a period of two years (Exhibit 1). The orders include that he is to not come within 500 metres of the property of the Suburb F property. The order expires in mid-2025. He has lodged an appeal from the Local Court determination. That appeal is yet to be determined in the District Court.
The de facto husband contends that the de facto wife requires leave pursuant to s 44(6) of the Act to commence proceedings for the adjustment of property out of time.
The property of the parties
Orders made on 19 June 2024 record, by way of notation, that the de facto wife contends that the net property of the parties available to adjustment is in the range $22.4 million. The de facto husband, by way of those notations, records the value of that property to be in excess of $20 million. It is the de facto husband’s contention that this property was all but solely sourced by way of bequest received by him after the death of his mother in 2015. The de facto husband was the executor of his late mother’s estate. Issue exists between the parties as to the de facto husband receiving further bequests by way of distributions from another deceased estate in 2020.
The joint balance sheet of the parties filed on 18 November 2024 is Exhibit 4. The de facto husband’s contended balance sheet as contained in his affidavit filed on 20 February 2025 is Exhibit 5.
The property interests of the de facto husband are broadly held by way of trust structures as follows:
(a)The Geissler Settlement Trust. This is described by the husband as a discretionary trust. It owns real property at G Street, Town H, New South Wales and J Street, Suburb K, New South Wales (“the J Street property”). The de facto husband values the properties in the range of $900,000 and $10 million. The de facto wife contends that the J Street property was the subject to a mortgagee valuation in September 2023 at $35.5 million. The Geissler Settlement Trust holds all of the issued units in the Geissler Properties No 2 Unit Trust, which in turn owns the Suburb F property occupied by the parties during the relationship and currently occupied by the de facto wife and the children. The de facto wife contends that the Suburb F property is valued in the range of $2 million. The de facto husband contends a not dissimilar value of $2.05 million. There is some controversy as to whether that property is subject to an L Bank loan secured by way of mortgage upon it. If I understand the de facto husband’s evidence correctly, he contends the value of the L Bank facility is in the range of $800,000. The Geissler Settlement Trust additionally owns all the units in the Geissler Properties No 3 Unit Trust which in turn owns a property at M Street, Town N, Queensland. It owns 50 per cent of the issued units in the Geissler Properties No 1 Unit Trust which owns a property at O Street, Suburb P, New South Wales valued at approximately $1.8 million.
(b)The Q Trust. This is also described by the de facto husband as a discretionary trust. This trust own property at R Street, Suburb K, New South Wales. The de facto husband contends it has a value in the range of $2 million.
Additional to the trust structures is S1 Pty Ltd. It is the trustee of the Geissler Settlement Trust and of the Q Trust. An ASIC search (Exhibit 3) records that the de facto husband is the legal and beneficial owner of all the shares in S1 Pty Ltd. The de facto husband contends that he beneficially holds one third of the shares for himself and the remaining two thirds of the shareholding for his siblings, Ms Geissler, the second respondent in the proceedings, and Ms T. This is a significant dispute as between the parties for the purposes of the proceeding.
It appears from the evidence that S2 Pty Ltd is the current appointor and guardian of the Geissler Settlement Trust. Arising from that circumstance, the de facto wife contends that the Geissler Settlement Trust is the property of the she and the de facto husband amenable to adjustment pursuant to s 90SM of the Act. The de facto husband puts that contention into issue.
The de facto husband, it appears absent controversy, gives evidence that what might be loosely described as “the Geissler Group”, obtained a finance facility from B Pty Ltd valued in the range of $17.75 million. There is some dispute between the parties as to the extent of the real property security provided to B Pty Ltd. There appears little dispute that the de facto husband has provided a personal guarantee on behalf of the borrowers of the facility. B Pty Ltd has issued a notice of default pursuant to the loan agreement grounding the provision of the $17.75 million facility. It is the de facto husband’s case that he and his siblings have been attempting to refinance B Pty Ltd debt and/or rationalise the property interests of the Geissler Settlement Trust and of the Geissler Group.
The de facto husband further holds all the units in U Unit Trust that in turn owns a property at V Street, Town N. He holds a 50 per cent interest in a real property at W Street, Suburb F New South Wales, with his sister, the second respondent, Ms Geissler. He records the value of his interest in that property at approximately $1.5 million subject to a mortgage debt $375,000.
The de facto wife, save and except items of personalty, has little property other than a superannuation interest of an accumulation nature valued at just under $140,000. The de facto husband disclosed an accumulation interest in a self-managed superannuation fund valued in the range of $185,000.
THE PRIOR LITIGATION
The de facto wife filed an Initiating Application seeking orders adjusting property between she and the de facto husband pursuant to 90SM of the Act on 15 March 2018 in SYC1624/2018 (“the 2018 proceedings”). The proceedings were discontinued on 27 March 2018. The discontinuance was made by way of a consent order entered by the de facto wife, the de facto husband, and two other corporate respondents, being Geissler Nominees Pty Ltd and S1 Pty Ltd. Z Lawyers acted for the de facto wife in those proceedings. The de facto husband, the second respondent, and the third respondents retained counsel to appear on their behalf for the purposes of entering consent orders on discontinuance.
THE OBJECTION TAKEN TO THE SUBPOENA DIRECTED TO SUPER & SUPER LAWYERS
On 14 January 2025 the de facto husband caused a subpoena to be issued and served upon Super & Super Lawyers, who currently act for the de facto wife in these proceedings. The subpoena sought, with some particularity, what has been broadly described as production of the file of Z Lawyers, being the firm who acted for the de facto wife in the 2018 proceedings.
It is uncontroversial that Super & Super Lawyers have in their possession or control, the de facto wife’s solicitors file, that is, Z Lawyers from the 2018 proceedings.
The subpoena seeks production of:
1. A copy of this subpoena.
2. Copies of the following in relation to [the de facto wife] (born […] 1978) (‘[the de facto wife]’) during the period from 1 January 2017 to 1 January 2019 in your possession:
2.1 A copy of the whole file(s) in respect to the de-facto relationship shared between [the de facto husband] and [the de facto wife], including in respect to the division of property held by [the de facto wife] and [the de facto husband];
2.2 Copies of any advices in respect to the de-facto relationship shared between [the de facto husband] and [the de facto wife], including but not limited to, in respect to the division of property held by [the de facto wife] and [the de facto husband], the advantages and disadvantages of commencing, delaying and/or withdrawing any proceedings, the likely prospects of success, the resumption of the relationship, contributions, including inheritances received and family law advice generally;
2.3 In respect to Family Law proceedings number SYC 1624/2018 in the Federal Circuit Court (now the Federal Circuit and Family Court of Australia) (the ‘Court’):
a. Copies of all files, documents, records, notes, correspondence, records of conversations, instructions, files notes, documents and Orders;
b. Copies of instructions to prepare any Affidavit(s), Initiating Application(s), and other associated documents required to commence and discontinue proceedings in the Court;
c. Copies of advices.
2.4 Copies of all cost agreements, statements of account, receipts and invoices.
The de facto wife filed a Notice of Objection to the subpoena on 15 January 2025 making a claim of legal professional privilege.
It appears not controversial for the purposes of the objection to the subpoena, that the Z Lawyers file, including the documents identified in the schedule to the subpoena, with the exception of those filed in the proceeding, are confidential documents prepared for the dominant purpose of providing the de facto wife with professional legal services pursuant to s 119 of the Evidence Act 1995 (Cth) (“the Evidence Act”) and prima facie are privileged. Notation D made on 23 August 2024 enabled the parties to inspect file number SYC1624/2018.
A dispute exists between the de facto husband and the de facto wife as to why the 2018 proceedings were discontinued. The de facto husband says that the de facto wife is contending that the 2018 proceedings were discontinued because she intended to resume cohabitation with him, and it was this event that led to the discontinuance. There is no evidence from the de facto husband or the other corporate respondents as to the reason the 2018 proceedings were discontinued.
The de facto husband contends that any privilege claimed by the de facto wife of a legal professional character has been lost or waived by operation of s 122(2) of the Evidence Act. It provides:
122 Loss of client legal privilege: consent and related matters
…
(2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.
In Mann v Carnell (1999) 201 CLR 1 the High Court said:
28.… Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. …
29.Waiver may be express or implied. … What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.
(Footnote omitted)
The de facto husband submits that a relevant factual finding at trial will be as to whether the parties reconciled, and will, in part, turn upon the de facto wife’s credibility. He identified in his written submissions:
7.By the subpoena, the [de facto] husband seeks the substance of the [Z Lawyers] file held by SSL to determine what advice and instructions passed between the [de facto] wife and SSL as at the date she withdraw the previous proceedings, so that the [de facto] husband might test the [de facto] wife’s contentions in that regard.
(Emphasis added)
The de facto husband further identified in his written submissions:
16.The cornerstone of an implied waiver of privilege is conduct which either directly or indirectly puts the content of the privilege communications in issue.
(Footnote removed)
The de facto husband submitted that the de facto wife has either expressly or implicitly waived her legal professional privilege by way of:
(a)Her Notice of Discontinuance of the 2018 proceedings, together with her entry to the consent orders made on 27 March 2018; and
(b)Paragraphs 10 to 12 of the de facto wife’s affidavit filed on 3 December 2024, being:
10. On 29 May 2017 we separated under the same roof before resuming cohabitation shortly thereafter.
11. On 13 March 2018 we separated under the same roof and resumed cohabitation later that month. In March 2018 I commenced family court proceedings which I discontinued on 27 March 2018.
12. Between March 2018 and […] December 2021 [the de facto husband] and I continued to live in a de facto relationship.
Hence, the reason for seeking the documents in the subpoena is grounded from the contention as to the discontinuance being generated from a reconciliation. The de facto husband contends the de facto wife’s state of mind is in issue as to the fact of withdrawal of the proceedings. He says that whether she in fact withdrew the proceedings because she genuinely wished to reconcile herself with the de facto husband developed in oral submissions to contend that she withdrew from the proceedings because she received advice that her s 90SM case was hopeless.
The de facto wife puts into issue any waiver of privilege. It is her case that she does not promote her state of mind as having a nexus to the consensual discontinuance of the 2018 proceedings. She submits the fact of a de facto relationship is determined by relation to the criteria in s 4AA of the Act, and that a state of mind is irrelevant to a finding of fact as to the existence of a de facto relationship.
There is no contention of estoppel or any like principle being applicable in the de facto husband’s defence to the de facto wife’s substantive application pursuant to s 90SM of the Act.
There is insufficient evidence to establish a waiver of privilege as to the content of advice received by the de facto wife from Z Lawyers in 2018. I do not accept that it has been established that there is an inconsistency between the conduct of the de facto wife and the maintenance of the confidentiality of her instructions to her solicitors at that time. The factual issue in dispute is directed to the discontinuance of the proceedings. The de facto wife has not expressly or implicitly disclosed any instructions that passed between she and Z Lawyers as to that fact of discontinuance. I accept the submission made by the de facto wife that she has not acted in a way that is inconsistent with the maintenance of legal professional privilege, such that she has not attempted to boost her case by seeking to rely on any advice that she received from Z Lawyers, nor has she justified her role in the discontinuance of the proceedings by reference to the substance or effect of the legal advice.
The de facto husband assumes the contents of documents in the file, absent sufficient foundation. His attempt to engage in what appears to be a fishing expedition to determine what advice, if any, the de facto wife received from her solicitors as to her prospects of success in the 2018 proceedings has little merit.
The de facto wife’s claim for legal professional privilege by way of the Notice of Objection filed on 13 December 2024 to the subpoena directed to Super & Super Lawyers issued at the request of the de facto husband will be upheld and the subpoena will be struck out.
THE OBJECTION TAKEN TO THE SUBPOENA ISSUED TO THE SECURED CREDITS, B PTY LTD, C LTD, AND D LTD
On 30 January 2025 the de facto wife caused subpoenas to be issued to B Pty Ltd, C Ltd, and D Ltd, seeking:
(a)From B Pty Ltd:
1. a copy of this subpoena
2. For the period 1 March 2018 to 30 January 2025:
a. Copies of all:
i. Applications for loans;
ii. Financial statements provided to the lender;
iii. Tax returns provided to the lender;
iv. Bank account statements provided to the lender;
v. Personal guarantees provided to the lender;
vi. Loan offers made by the lender;
vii. Loan agreements entered into between the lender and borrower;
viii. Loan statements
in respect of loans taken out by [AA Pty Ltd] relating to:
i. folio A/[…] being Lot A in Deposited Plan […] at [Suburb K] Local Government Area [BB Council] (also known as [R Street, Suburb K] NSW) with mortgage […69] to [C Ltd] registered on title; and
ii. folio B/[…] being B in Deposited Plan […] at [Suburb K] Local Government Area [BB Council] (also known as [R Street, Suburb K] NSW) with mortgage […69] to [C Ltd] registered on title.
3. For the period 1 March 2018 to 30 January 2025:
a. Copies of all:
i. Applications for loans;
ii. Financial statements provided to the lender;
iii. Tax returns provided to the lender;
iv. Bank account statements provided to the lender;
v. Personal guarantees provided to the lender;
vi. Loan offers made by the lender;
vii. Loan agreements entered into between the lender and borrower;
viii. Loan statements
in respect of loans taken out by [S2 Pty Ltd] relating to folio […] being Lot […] in Deposited Plan […] at [Suburb K] Local Government Area [BB Council] (also known as [J Street, Suburb K] NSW) with mortgage […64] to [C Ltd] registered on title.
4. For the period 1 March 2018 to 30 January 2025:
a. Copies of all:
i. Applications for loans;
ii. Financial statements provided to the lender;
iii. Tax returns provided to the lender;
iv. Bank account statements provided to the lender;
v. Personal guarantees provided to the lender;
vi. Loan offers made by the lender;
vii. Loan agreements entered into between the lender and borrower;
viii. Loan statements
in respect of loans taken out by [Geissler Nominees Pty Ltd] relating to folio […] being Lot […] in Deposited Plan […] at [Suburb F] Local Government Area [CC Council] (also known as [E Street, Suburb F] NSW) with mortgage […98] to [D Ltd] registered on title.
(b)From C Limited:
1. a copy of this subpoena
2. For the period 1 March 2018 to 30 January 2025:
a. Copies of all:
i. Applications for loans;
ii. Financial statements provided to the lender;
iii. Tax returns provided to the lender;
iv. Bank account statements provided to the lender;
v. Personal guarantees provided to the lender;
vi. Loan offers made by the lender;
vii. Loan agreements entered into between the lender and borrower;
viii. Loan statements
in respect of loans taken out by [AA Pty Ltd] relating to:
i. folio A/[…] being Lot A in Deposited Plan […] at [Suburb K] Local Government Area [BB Council] (also known as [R Street, Suburb K] NSW) with mortgage […69] to [C Ltd] registered on title; and
ii. folio B/[…] being B in Deposited Plan […] at [Suburb K] Local Government Area [BB Council] (also known as [R Street, Suburb K] NSW) with mortgage […69] to [C Ltd] registered on title.
3. For the period 1 March 2018 to 30 January 2025:
a. Copies of all:
i. Applications for loans;
ii. Financial statements provided to the lender;
iii. Tax returns provided to the lender;
iv. Bank account statements provided to the lender;
v. Personal guarantees provided to the lender;
vi. Loan offers made by the lender;
vii. Loan agreements entered into between the lender and borrower;
viii. Loan statements
in respect of loans taken out by [S2 Pty Ltd] relating to folio […] being Lot […] in Deposited Plan […] at [Suburb K] Local Government Area [BB Council] (also known as [J Street, Suburb K] NSW) with mortgage […64] to [C Ltd] registered on title.
4. For the period 1 March 2018 to 30 January 2025:
a. Copies of all:
i. Applications for loans;
ii. Financial statements provided to the lender;
iii. Tax returns provided to the lender;
iv. Bank account statements provided to the lender;
v. Personal guarantees provided to the lender;
vi. Loan offers made by the lender;
vii. Loan agreements entered into between the lender and borrower;
viii. Loan statements
in respect of loans taken out by [Geissler Nominees Pty Ltd] relating to folio […] being Lot […] in Deposited Plan […] at [Suburb F] Local Government Area [CC Council] (also known as [E Street, Suburb F] NSW) with mortgage […98] to [D Ltd] registered on title.
(c)From D Limited:
1. a copy of this subpoena
2. For the period 1 March 2018 to 30 January 2025:
a. Copies of all:
i. Applications for loans;
ii. Financial statements provided to the lender;
iii. Tax returns provided to the lender;
iv. Bank account statements provided to the lender;
v. Personal guarantees provided to the lender
vi.Loan offers made by the lender;
vii. Loan agreements entered into between the lender and borrower;
viii. Loan statements
in respect of loans taken out by [Geissler Nominees Pty Ltd] relating to folio […] being Lot […] in Deposited Plan […] at [Suburb F] Local Government Area [CC Council] (also known as [E Street, Suburb F] NSW) with mortgage […98] to [D Ltd] registered on title
The de facto husband filed Notices of Objection to those subpoenas on 6 February 2025, contending an abuse of process, fishing, and an absence of relevance. He interlinked the grounds as to fishing and abuse of process to the absence of apparent relevance of the document sought.
The gravamen of his submission was that he had disclosed to the de facto wife to date the fact of each of the relevant entities identified in the schedules borrowing funds, as to the particulars of the facilities of the borrowed funds, and as to the efforts made by the entities identified the schedules to refinance the $17.75 million loan facility, or to rationalise their property interests in the shadow of the statutory demand made by the secured mortgagee.
By way of Exhibit 2, he identified letters from his instructing solicitors dated 29 May 2024 and 4 February 2025 disclosing some of the documents identified in the schedules to the subpoena.
The de facto wife contends that the de facto husband has been delinquent in his disclosure of documents that ordinarily would have been prepared in the course of the operations of the trusts on an annual basis and would have been, or were, provided to lenders either to obtain loan facilities, make application for extensions of for further loan facilities, or as a condition of maintaining finance facilities. The de facto wife identifies the specie and value of the extensive property and financial resources available to the de facto husband as recorded in Exhibits 4 and 5. She contends that the representations made by the trusts and/or the de facto husband on behalf of the trusts as to his interests in them to the specified financial institutions are relevant.
It seems there has been some challenges encountered by the de facto husband in complying with his disclosure obligation as codified in ch 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), with focus on the finalised and published annual financial statements and tax returns of the corporations and trusts for the past three financial years.
As identified earlier in these reasons, there is substantive dispute between the parties as to the nature and character of the de facto husband’s interest in the Geissler Settlement Trust.
Importantly, for the purposes of the proceedings today, the Geissler Settlement Trust in turn controls the Geissler Properties Unit Trust, which is the owner of the Suburb F property occupied by the de facto wife and the children. The de facto husband has placed the de facto wife on notice as to an intention to list that property for sale. The de facto wife resists the disposal of the property and seeks orders securing her and the children’s occupation of it pending determination of the proceedings in circumstances where she seeks the property in specie by way of her substantive s 90SM relief.
The de facto husband holds three of the four issued shares in the trustee, S1 Pty Ltd. The second respondent, his sister Ms Geissler, holds the remaining share. The de facto husband and Ms Geissler are the directors of the trustee.
The fundamental principle in relation to an objection relating to an absence of apparent relevance to the documents sought to be produced on subpoena (see National Employers’ Mutual General Insurance Association v Waind and Hill [1978] 1 NSWLR 372). Hence, a pivotal issue for determination is the apparent relevance of the documents sought to be produced by the subpoena. It is self-evidently not a high threshold.
Provided a subpoena has a legitimate forensic purpose, it will not be set aside. A legitimate forensic purpose has been held to include “a sufficient apparent connection to justify the documents sought on production or inspection” (see White & Tulloch & White (1995) FLC 92-640 at 708). It has further been determined that providing it is “on the cards” the documents sought would bear upon and have some relevance to the substantive proceedings, the subpoena process ought to be completed (Martin & Martin and Anor (No. 2) [2014] FamCA 232 at [28], referring to Alister v R (1984) 154 CLR 404).
Further, whilst a document may appear irrelevant or absent apparent relevance in isolation, its relevance may become clear in the context of all the evidence.
The de facto husband’s case today as to the requirement of the Geissler Group to dispose of the Suburb F property in order to meet in part or whole the statutory demand made by B Pty Ltd, or as part of rationalising the Geissler Group’s property interests, to my mind, engages on all fours with the categories of documents sought to be produced by way of each of the three subpoena subject to objection. Specifically, the de facto wife raises the availability of alternate properties that the Geissler Group could dispose of so as to engage with the statutory demand or by way of rationalising its property interests, other than selling the Suburb F property currently occupied by she and the children.
This conclusion is reinforced by a consideration of the orders sought in the conduct and management of the litigation to date, identifying the de facto husband’s challenges encountered in complying with his disclosure obligation regarding both documents and information. Notation C(d) made on 19 June 2024 recorded that the de facto husband engaged an accountant to prepare trust and corporate returns for period to 30 June 2014 up until the date of the notation. It appears some eight months later that this has not occurred.
In all the circumstances and for all the reasons outlined, the apparent relevance of the documents sought in each of the schedules to subpoena subject to objections has been established. In circumstances where the other grounds of the objection operate in conjunction with an absence of apparent relevance, the remaining categories of objection dissipate. The Notices of Objection filed by the de facto husband on 6 February 2025 to the subpoena directed to B Pty Ltd, C Ltd, and D Ltd are dismissed. The parties will have leave to inspect the documents produced.
For all the above reasons, I make the orders as set out herein.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 28 February 2025
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