Neame & Neame (No 2)
[2023] FedCFamC1F 956
•10 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Neame & Neame (No 2) [2023] FedCFamC1F 956
File number: PAC 3201 of 2021 Judgment of: SCHONELL J Date of judgment: 10 November 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Notices of Objection – Where the wife contended that subpoenas to two hotels had no relevance – Where the husband asserted that the documents produced would assist with testing the accuracy of the wife’s evidence – Where the Court is not satisfied that the husband has established the relevance of the documents produced – Subpoenas set aside. Legislation: Evidence Act 1995 (Cth) s 50 Cases cited: Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98
Lexcray Pty Ltd v Northern Territory of Australia [1998] NTSC 113
Lucas Industries Ltd v Hewitt and Ors (1978) 45 FLR 174
R v Saleam (1989) 16 NSWLR 14
Rochfort v Trade Practices Commission (1982) 153 CLR 134; [1982] HCA 66
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Division: Division 1 First Instance Number of paragraphs: 34 Date of last submissions: 3 November 2023 Date of hearing: 21 September 2023 Place: Sydney The Applicant: Litigant in person Solicitor for the Respondent: Barkus Doolan Winning Solicitor for the Independent Children's Lawyer: Did not participate ORDERS
PAC 3201 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS NEAME
Applicant
AND: MR NEAME
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
10 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The subpoena issued to Q Hotel is set aside and dismissed.
2.The subpoena issued to R Hotel is set aside and dismissed.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Neame & Neame has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
On 21 September 2023, the Court made orders by consent for the purposes of dealing with two subpoenas issued by the husband that were the subject of Notices of Objection filed by the wife on 3 August 2023. The subpoenas were directed to two hotels in Sydney, being the Q Hotel and R Hotel.
The subpoenas called for production in exactly the same terms of various records held by the hotels relating to accommodation bookings, documents evidencing the identity of guests staying in the accommodation and tax invoices for all costs incurred in relation to the accommodation for the period 3 April 2021 to date. Documents have been produced but inspection has not been granted in light of the Notices of Objection.
The orders made 21 September 2023 provided for the parties to file written submissions, with the last of those to be filed by 3 November 2023, and for the Court to thereafter determine the matter on the papers.
The wife’s written submissions included reference to the Family Report by the single expert Ms T dated 16 May 2022 as well as an interim Apprehended Domestic Violence Order made by the Suburb S Local Court in late 2022.
The husband’s written submissions referred to various paragraphs in affidavits of the husband filed 13 July 2023 and 12 July 2022, affidavits of the wife filed 31 March 2022 and 13 August 2023 as well as a schedule pursuant to s 50 of the Evidence Act 1995 (Cth) that identified various expenses incurred by the wife through banking facilities with the Commonwealth Bank of Australia and National Australia Bank.
The subpoenas need to be seen in the context of wider financial and parenting proceedings between the parties which first commenced in 2021 and have had a significant number of appearances in the Court but have not yet been allocated a final hearing date.
APPLICABLE LAW
The jurisprudence in relation to subpoenas is well settled.
A subpoena is akin to a court order. Justice Mason (as he then was) in Rochfort v Trade Practices Commission (1982) 153 CLR 134 held at 143:
… The subpoena, which has the effect of a court order, requires the person to whom it is addressed to produce the documents which it describes. It assumes that he has the ability or capacity to produce them. At times this idea has been expressed by saying that the person served is bound to produce any document which is in his possession, custody or control. But these statements should not be allowed to obscure the true effect of the subpoena – it binds a person who can produce the documents to do so.
The Court’s power to issue a subpoena is part of its obligation to ensure the proper administration of justice.
In Lucas Industries Ltd v Hewitt (1978) 45 FLR 174, Smithers J held at 189:
The purpose of the process of subpoena is to facilitate the proper administration of justice between parties. For that purpose it is the policy of the law that strangers who have documents may be put to certain trouble in searching for and gathering together relevant documents and bringing them to court. It is according to the same principle that persons who have knowledge of facts are put to the inconvenience of being brought to court and required to give evidence.
In Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (“Secretary of the Department of Planning, Industry and Environment v Blacktown City Council”), Brereton JA observed:
84. In modern litigation, the subpoena for production is crucial to the ability of a party to investigate the facts and assemble evidence to prove a case. That is particularly so in civil litigation, where a plaintiff does not have the extra-curial investigative powers that are available to police and prosecutors in the criminal context.
It is beyond doubt that the issuing party bears the onus of establishing to the satisfaction of the Court the legitimate forensic purpose relied upon in seeking production of documents (R v Saleam (1989) 16 NSWLR 14 at 18).
The test has been expressed in terms of apparent relevance.
In Secretary of the Department of Planning, Industry and Environment v Blacktown City Council, Bell P observed:
68.… The word “apparent” admits of the possibility that the documents sought by way of subpoena may not ultimately turn out to be relevant. Their apparent relevance, however, should be able to be ascertained by an examination of the description or identification of the document or documents sought in the schedule to the subpoena in light of the issues in the case, as they present themselves on the pleadings, in particulars and/or in affidavits or witness statements if they have been filed or served at the time of the issue of the subpoena.
69. If the documents are apparently relevant and, provided that the terms of the subpoena are not unduly vague or the ambit of the subpoena is not such that it would be oppressive to comply with it, the subpoena should not be set aside. …
…
71. The converse of this, namely the absence of any apparent relevance (in the broad sense of that term) of the documents sought to be subpoenaed to the issues in the case, may warrant a conclusion of a lack of legitimate forensic purpose and be a sufficient ground to set aside a subpoena or a part of a subpoena: see Portal Software at [22]. That is because, if the documents subpoenaed do not meet the relatively low threshold of apparent relevance, it may readily be inferred that the documents are being sought for some purpose foreign to the litigation. That may not have been the issuing party’s motivation, but the lack of apparent relevance test is a convenient means of delimiting that which is legitimate.
His Honour went onto observe:
80. My review of the authorities in relation to the setting aside of subpoenas and/or the refusal to permit access to documents produced leads me to the conclusion that, although a party will generally be able to demonstrate that it had a legitimate forensic purpose in issuing a subpoena where, to quote Simpson J (as her Honour then was, and with whom Spigelman CJ and Studdert J agreed) in Saleam at [11], it can:
“(i) identify a legitimate forensic purpose for which access is sought; and
(ii) establish that it is ‘on the cards’ that the documents will materially assist his case”,
at least in civil matters, an inability to demonstrate that it is “on the cards” that the documents sought will materially assist the subpoenaing party’s case will not automatically require either that the subpoena be set aside or that access to the documents produced be refused. It will generally be sufficient and prima facie evidence of a legitimate forensic purpose if the documents sought to be produced on subpoena have an apparent relevance to the issues in the case and or bear upon the cross examination of witnesses expected to be called in the proceedings.
While Brereton JA observed:
89. I agree with Bell P, for the reasons given by his Honour, that an issuing party is not required to show that it is “likely” (or “on the cards”) that the documents sought will materially assist its case, as distinct from that it is “likely” (or “on the cards”) that they will add, in some way or another, to the relevant evidence in the case, and that the essential question is whether the documents called for are apparently relevant, or capable of providing a legitimate basis for cross-examination, in which case there is a legitimate forensic purpose for the issue of the subpoena. In my view, at least in civil proceedings and in the absence of any question of public interest immunity, no more is required to support the issue of a subpoena for production than that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. This reflects the notions that the documents relate to, throw light on, or are sufficiently relevant to the dispute; that they “appear relevant in the sense that they relate to the subject matter of the proceedings”; or that they could possibly throw light on the issues in the case. Moreover, documents will add “in some way” to the relevant evidence in the case if they are capable of assisting in cross-examination, or go to credit, and notwithstanding that they are inadmissible according to the rules of evidence.
(Footnotes omitted)
The Court’s power to set aside a subpoena is but part of its power to regulate its own processes and to intervene where necessary to prevent an abuse of process. A subpoena will constitute an abuse of process if it is not issued for a legitimate forensic purpose. That is, it has not been issued bona fide to obtain ‘apparently relevant’ evidence.
In Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100–101, Powell J set out a number of examples in which a court would exercise its jurisdiction to set aside a subpoena. Those examples included:
·“where the subpoena had not been issued bona fide for the purposes of obtaining relevant evidence”;
·“where the subpoena has been used for the purpose of obtaining discovery or further discovery” against a party or a non-party;
·where requiring a party to comply with the subpoena to produce documents would be oppressive; and
·where the subpoena has been issued for purposes which is impermissible such as fishing.
Justice Powell went on to observe at 100–101:
… the authorities do not make clear whether such classes of case to which I have referred above are to be regarded as the only cases in which the court will intervene, or, whether such cases are to be regarded as merely particular examples of a broad class of case in which the court will intervene to exercise its jurisdiction to set aside a subpoena, or, indeed, whether the jurisdiction to set aside a subpoena is but one part of a wider jurisdiction of the court. It seems to me, however, that when, as one does, one finds assertions that the court's jurisdiction to set aside a subpoena is but part of the inherent jurisdiction of the court (see, for example, R v Lewes Justices; Ex parte Secretary of State for the Home Department (at 240 per Lord Parker CJ, at 244 per Bridge J, as he then was)) coupled with assertions that a subpoena will be set aside if it be issued for an impermissible, or illegitimate, purpose, or if to require compliance with it would be oppressive (see, for example, Commissioner for Railways v Small (at 573-575 per Jordan CJ) it is difficult to avoid the conclusion that, in reality, the court's jurisdiction to set aside a subpoena is but one aspect of the court's jurisdiction to act to prevent an abuse of process, and that the particular classes of case which I have recorded above are to be regarded as no more than examples of situations which the courts, in the past, have held, and, in the future, would hold, to be cases of an abuse of process.
In relation to subpoenas directed to non-parties, Kearney J in Lexcray Pty Ltd v Northern Territory of Australia [1998] NTSC 113 observed at 6:
The Court is concerned to see that its process is not “simply used to torture [non-parties] and not for the purpose of justice”; In r Mundell; Fenton v Cumberlege (1883) 52 LJ Ch. N.S. 756 at 758. A balance must be struck between the right of a plaintiff to obtain documents in the hands of a non-party, in the interests of the proper administration of justice, and the private rights of that non-party. A non-party is always entitled to apply to set aside a subpoena, for “oppression”.
SUBMISSIONS OF THE HUSBAND
The husband contended that the subpoenas have apparent relevance to the parenting and financial proceedings.
In relation to the parenting proceedings, the husband submitted the wife’s consumption of alcohol is an issue as well as her compliance with an order which restrains her from consuming alcohol during the time the children are in her care and twelve hours prior thereto. He contended that the wife’s alcohol consumption impacts upon her parental capacity and the future living arrangements of the children.
The husband further contended that the wife has said that she has “never left the children in the care of anyone to stay in hotels overnight” (affidavit of wife filed 13 August 2023, paragraph 20(ii)). In those circumstances, he said in his written submissions that he is entitled to gather documentary evidence that is likely to prove or disprove:
28.…
28.1whether or not and, if so, when the Wife accommodated herself with regularity and frequency in hotels (or accommodation venues) during the day or overnight, as evidenced in the proposed Exhibits 1 - 3 with or without the children. Actual accommodation bookings and guest identification records sought to be produced pursuant to items 2 and 3 of the subpoenas to [Q Hotel] and [R Hotel] will likely establish if the children were guests;
28.2 whether or not the Wife has purchased alcohol while visiting or being accommodated at the hospitality and accommodation venues to whom subpoenas have issued. Itemised Tax Invoices sought to be produced pursuant to item 3 of the subpoenas will likely prove same; and
28.3 if the Wife has purchased and consumed alcohol at the hospitality and accommodation venues, whether or not any such consumption by the Wife has had any impact on the Wife’s compliance with the existing personal injunctions which continue to bind her.
(Emphasis in original)
In relation to the financial aspect of the proceedings, the husband contended that the wife is currently in sole control of the parties’ primary asset, a business franchise. He contended that the extent to which the wife attends and works at the business on a weekly basis is an issue as is the quantum of income and benefits received by the wife post separation as well as how such income and benefits are recorded. He submitted:
20.What is not known, and what can only be ascertained by the Husband from a review of documents produced in answer to the subpoenas, is each of the following matters relevant to the parenting and financial aspects of the parties' proceedings:
20.1whether or not the expenditure incurred at [Q Hotel] and [R Hotel] was expenditure personal to the Wife (and for the Wife), or whether it was business related expenditure which has somehow been recorded as a category of expenditure of the company [D Pty Ltd] (including on its Profit & Loss statements);
20.2 whether or not the expenditure related to the purchase of alcohol for the Wife which may or may not have been consumed by the Wife at times in potential breach of the existing interim parenting Orders;
20.3 if the expenditure incurred related to overnight accommodation, whether or not it was the Wife personally who availed herself of such overnight accommodation and/or if the accommodation was also for some or all of the parties' children;
20.4 if the expenditure was related to overnight accommodation for the Wife but not any of the parties' children, the care arrangements that applied for the parties' children during each period of the Wife's absence if the children were not already in the care of the Husband at the relevant time (noting that without accessing the subpoenaed documents, the Husband cannot determine the actual dates of any overnight accommodation simply from dates that transactions have been recorded on bank statements); and
20.5 if the expenditure was unrelated to the Wife or the parties' children, if the Wife has been and/or is financially supporting any third party including within the context of:
20.5.1 the Wife having given evidence to this Honourable Court as to her own limited financial circumstances and those of [D Pty Ltd]; and
20.5.2 the Wife opposing the Husband's prior interim spouse maintenance application in which she contended she lacked the financial capacity to support the Husband for various reasons.
(Emphasis in original)
The husband denied any contention the subpoenas are designed to intimidate, harass, or stalk the wife (husband’s written submissions, paragraph 22).
SUBMISSIONS OF THE WIFE
The wife contended that the documents have no relevance to any issue in the proceedings and amount to “a ‘witch hunt’ designed to track, trace and monitor [her] movements since separation” (Notices of Objection filed 3 August 2023, p.3). The wife contended that she has been a victim of domestic violence at the hands of the husband and referenced the Family Report. She also submitted that the subpoena has been issued for an improper purpose, namely to abuse, harass, stalk and intimidate her.
DISCUSSION
As the authorities referred to above demonstrate, the threshold for establishing apparent relevance is relatively low. However, as the authorities make plain, the documents the subject of the subpoena must have apparent relevance to the issues in the case.
In a Court which does not conduct its business by way of pleadings, the issues will be gleaned from the orders sought by the parties and the evidence filed to date in the proceedings. Beyond the broad contentions in the husband’s written submissions, he took the Court to no evidence filed by him that addressed the apparent relevance of the documents to the parenting proceedings. Rather, he relied upon a contention in an affidavit filed by the wife on 13 August 2023 referred to earlier.
The husband was on notice that the wife was relying on the Family Report as she attached it to the Notices of Objection. The Family Report identified that the husband sought final orders for primary care, with the children spending six nights a fortnight with their mother. The single expert recorded that the husband “sees the best case scenario as a ‘fifty/fifty outcome’” (at paragraph 43). The Family Report also referred to the husband’s allegation that the wife was misusing alcohol and that the wife’s “excessive drinking exacerbates her anger issues” (at paragraph 52). The single expert recorded the wife’s denial and that “[t]he CDT test results do not indicate that the wife has been binge drinking/uses excessive amounts of alcohol on a regular basis” (at paragraph 142). The report goes on to conclude:
224.… The report writer has not been presented with any subpoenaed information that would collaborate these allegations and the CDT tests would appear to support the [wife’s] position that she does not abuse alcohol. The [wife] has not been convicted of any driving/criminal offence related to drug/alcohol misuse. The information provided by the school is that [X] is well cared for and attends school regularly whilst in her [wife’s] care. Similarly, the [wife] is able to function at a high level when it comes to running the [business]. Her parenting capacity does not appear to be compromised at this point in time and she seems to be functioning very well, all things considered. This would not be the case if the [wife] was abusing alcohol regularly or to the extent suggested by the [husband].
At this stage, the conclusions reached by the single expert have not been the subject of cross‑examination. The husband would presumably contend that the documents are necessary to test the assertions made by the single expert. That, however, does not mean that the documents are relevant to an issue in the proceedings. The central issue in the parenting proceedings is the appropriate living arrangements for the children. The husband’s case as expressed in the Family Report (he has not taken the Court to any other document that would enable the Court to reach a contrary conclusion) is that the children should either be in the wife’s care for six out of fourteen nights or alternatively, in the wife’s care for seven out of fourteen nights. In those circumstances, the husband clearly is of the view that the wife is an appropriate parent to care for the children either half the time or slightly less than half the time. I am not satisfied at this stage in the circumstances as defined by the relief that he seeks that the documents have any apparent relevance to the parenting proceedings. All too often parties pursue matters that have no relevance to the final issue that the Court is called upon to determine. This is one such example.
In relation to the financial proceedings, the husband contended that the documents have apparent relevance to the wife’s access to income and how that income is applied. In the s 50 schedule, the husband has identified payments from two bank accounts totalling $8,157.13 over an approximately 57 week period. That is an average of $143 per week.
The husband has not sought to place before the Court a balance sheet that sets out what the parties’ assets are to enable the Court to make some assessment as to whether an average expenditure of $143 per week has any apparent relevance to the financial proceedings. A simple but relevant example suffices to demonstrate the proposition. If, for example, the parties’ assets have a total net value of only a couple of hundred thousand dollars, then perhaps expenditure of $8,157.13 may (questionably) have some apparent relevance ultimately to the parties’ financial proceedings. However, if the net assets of the parties are measured in the millions of dollars, then expenditure by one party of a little over $8,000 over one year could have no apparent relevance to any issue in the proceedings.
The husband bears the onus to establish, even at the very low threshold, the apparent relevance of the documents. He has not by the terms of the written submissions and reference to such of the evidence as he considered relevant crossed the very low threshold that he must to establish apparent relevance.
I will make orders setting aside the subpoenas.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 10 November 2023
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