Relationships Australia (Qld) & M
[2006] FamCA 1265
•22 November 2006
[2006] FamCA 1265
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. (P) BRF4195 of 2003
BETWEEN:
RELATIONSHIPS AUSTRALIA (QLD)
Applicant
AND:
M
Respondent
REASONS FOR JUDGMENT
BEFORE THE HONOURABLE JUSTICE CARMODY
Dates of Hearing: 6 October 2006
Date of Judgment: 22 November 2006 in Chambers
Appearances: Ms Laylee, Solicitor with O’Reilly Lillicrap, Solicitors of Brisbane, appeared on behalf of the APPLICANT
Mr Williams of Counsel, instructed by Hirst and Company, Solicitors of Brisbane, appeared on behalf of the RESPONDENT
CATCHWORDS:
FAMILY LAW – COSTS - SUBPOENA
The application
This is a contested application by Relationships Australia (Queensland) (RA) for the costs of complying with a subpoena requiring one of its family and child counsellors to give evidence at a final Pt VII hearing.
The substantive question is whether the costs thrown away due to the last minute settlement of the case should be met by RA on behalf of the subpoenaed witness or by the respondent as the issuing party.
The application is opposed on two grounds. First, that the Form 2 was filed outside the period allowed by the rules, and therefore, the application should not be heard. Second that there is nothing to suggest that the subpoena was wrongly issued.
The context
The matter was argued on the basis of the following agreed or non-contentious facts:
· RA is a voluntary government-funded not for profit organisation approved under s13A of the Act to offer family and child counselling.
· The subpoena in question was issued by the respondent on 1 February 2006. The subpoenaed witness, Ms P, is a qualified family and child counsellor within the meaning of s4(1) employed by RA.
· At all material times, Ms P was bound by the terms of a r 58 oath not to disclose communications or admissions made to her in an official capacity except in specified circumstances.
· Lawyers acting on behalf of RA objected to the subpoena by letter dated 8th February 2006 on the basis of statutory privilege and asked for Ms P to be released from the obligation to comply.
· The respondents replied on 14th February 2006 insisting on strict compliance.
· A formal notice of objection was filed on 20th February 2006.
· The parties’ lawyers agreed – in line with customary practice – to argue RA’s objection to the subpoena at the beginning of the trial and the personal attendance of Ms P was dispensed with by arrangement between the parties.
· Counsel for RA appeared on 6th March 2006 with instructions to have the subpoena to be set aside with costs.
· The application was adjourned to the next day.
· Overnight negotiations resulted in consent orders being filed. This obviated the need for Ms P to testify and meant that RA’s objection to the subpoena was left unresolved.
Should leave to apply be granted?
Assuming (without deciding) that it applies here, rule 19.08(2)(b) allows a party 28 days from the finalisation of proceedings to apply for ‘costs’, viz. the amount paid or to be paid for work done by a lawyer, including expenses. The period can be extended pursuant to r 1.14 at the discretion of the court.
An extension of time is resisted by the respondent on the basis that (a) it is highly desirable that questions of costs be dealt with as soon as possible after the conclusion of the main proceedings; (b) the delay was substantial and unjustified; and (c) irrespective of the merits of the application, the wife cannot be adequately compensated by an order for costs in her favour for the prejudice and embarrassment caused by the delay in filing. (cf r 1.14(3))
It is common ground that RA filed its application on 20th April 2006. It should have been lodged in the court no later than 3rd April 2006. Informal notice of the proceeding was given to the respondent on 7th June 2006. The documents subsequently went missing in the registry and were not sealed until 13th July 2006. They were formally served on 1st August 2006.
I am satisfied that the delay has been adequately explained by the uncontradicted evidence in Ms L’s affidavit. RA’s written submission on costs was provided on 13th March 2006. The Form 2 was not filed because of a mistaken belief that leave to apply had already been given. RA did not become aware of the error until 11th April 2006. It then promptly complied with the filing requirement. The delay in notifying and serving the respondent was due to administrative failures within the registry itself.
Granting an extension of time will not cause any apparent injustice or hardship to the respondent. The respondent’s lawyers were aware of RA’s intention to apply for costs as early as 8th February 2006. The issue was fairly and squarely raised on the first day of the trial.
It is clearly desirable that the question of costs be dealt with as close to the conclusion of the trial as practicable.[1] However, the question whether a community based organisation partly funded by the tax payer, should be out of pocket for complying with a subpoena is an important one and should be determined in the public interest rather than avoided where, as here, that can be done without prejudice to the issuing party.
[1] Greedy v Greedy (1982) FLC 91-250
Accordingly, the time allowed under the rules for the lodgement of the Form 2 in this case will be enlarged even though the time fixed by the rule has expired to enable RA be permitted to bring costs proceedings out of time.
Did the subpoena have to be complied with?
A subpoena is not a substitute for discovery.[2] It is an ex parte court order compelling third parties to assist the administration of justice by attending court to give relevant evidence, to produce documents or do both of those things.
[2]The A Group of Companies and A (2005) FamCA 561 per Guest J; Relationships Australia v Pasternak (1996) FLC 92-699.
The procedure interferes with the enjoyment of private rights of subpoenaed witnesses and can put them to considerable expense and effort. Severe penalties are provided for non-compliance yet they are available to litigants as of right and issued administratively without judicial supervision.[3] For these reasons, courts require the exercise of care and due diligence by the issuing party to take account of the recipient’s legitimate rights and interests when framing the terms of a subpoena.
[3] Non-compliance with a subpoena may lead to arrest and/or prosecution for civil contempt: s 112AP and r 15.36.1.
In Commission for Railways v Small [4] Jordan CJ said:
It is altogether improper that a pre-emptory order should be issued from the court commanding persons under a heavy penalty to do something which they are not or ought not be required to do.
[4] (1938) 38 SR(NSW) 564 at 572
Allen J also emphasised the professional responsibility of legal practitioners in drawing subpoenas in Dewley v Dewley[5]:
The right to have a subpoena issued with the authority of the court and the stated sanctions must carry with it the responsibility of acting reasonably and properly in relation to any person summoned to appear and obey its terms. Solicitors, as officers of the court, should, in my view, be vigilant to ensure that no oppressive or improper demands are made on strangers to the litigation under the authority and power which a subpoena presents to a layman. This should be obvious to any conscientious and responsible practitioner.
[5][ [1971] NSWLR 264 at 270
Once issued, a subpoena remains in force until it is fully complied with or the witness is excused or released by the issuing party or the court from the obligation to do so: r 15.24(2) and r 15.25(a) & (b).
Who bears the costs of a subpoena?
There is no general rule that a subpoenaed witness, or any other third party, for that matter, is prima facie liable for their own legal costs: cf. s 117(1) which applies to parties only.
In addition to any conduct money or witness fee payable under r 15.23(1) and (2) a subpoenaed witness may apply to be reimbursed under r 15.23(3) for extra expenses or a substantial loss incurred in complying with the subpoena obligation. Moreover, because a subpoena is valid unless and until the court rules otherwise an objecting witness or a person having sufficient interest in a subpoena must attend on the return date to have the subpoena set aside and apply for other relief including any loss or expense relating to compliance. This is clear from the terms of r 15.26(a),(c)&(d). The amount recoverable under r 15.23(3) or r 15.26(c) may include legal expenses for advice obtained about matters such as confidentiality and privilege. [6]
[6] Fuelexpress Ltd v Erickson Pty Ltd (1987) 75 ALR 284.
There is no suggestion that RA does not have sufficient standing to seek relief under r 15.26(c). Nor is it contended that the non-attendance of Ms P at the trial precludes a costs award in RA’s favour.
RA bases this application on paragraph 117(2A)(c). While power to order costs under s 117(2) is wide enough to cover independent parties[7] I think the issue of subpoena costs is more aptly dealt with under either r 15.23(3) or r 15.26(c).
[7] Tefler and Tefler (1966) FLC 92-688; re David (1998) FLC 92-809
Any award under r 15.23(3) or r 15.26(c) is not intended as a penalty but as a payment by one party to another by way of partial indemnity or compensation for legal and other professional costs incurred.
Rule 15.23(3) envisages reimbursement for ‘a substantial loss or expense’ greater than the amount of conduct money or witness fees payable under the rule. Its terms differ from those of its 1984 forerunner, O 20 r 17, which provided a process for compensating a subpoenaed third party who reasonably incurred costs or expenses (but not losses) connected with compliance. [8] The quantum of the claim also had to be reasonable.
[8] cf. Kennedy and Evans; Trust Bank (Intervener) (1994) FLC 92-514
Under the new rule a loss, if substantial, is just as recoverable as an actual expense. The rule does not give any clue to the meaning of “substantial” in this context but I take it to denote something considerable as distinct from trifling. Technically speaking, there is no separate requirement to establish that the loss or expense in question was reasonable as well as substantial. However, that does not mean that the concept of reasonableness is totally irrelevant to the discretionary exercise.
Rule 15.26(c) by contrast refers to any loss or expense relating to the person’s attendance in compliance with a subpoena applying for an order on the return date. It may be applied for in whole or in part at the same time as an application to set a subpoena aside but is not dependent on such an application being made. Presumably, a “loss or expense” claimed under r 15.26(c) would have to be both reasonable and reasonably incurred.
The Court has a discretion to allow or refuse the application, wholly or in part. It may assess the costs itself or order a taxation.[9]
[9]Ostasheen Pty Ltd v Deputy Registrar of Child Support (1998) FLC 98-001
Are family court counsellors compellable witnesses?
RA’s primary assertion is that issuing the subpoena was tantamount to an abuse of process and would almost certainly have been set aside if the question of its legitimacy had ever reached the determination stage.
This argument illustrates the problem of balancing a litigant’s right to place all relevant material before a court with the duty to protect privileged communications from improper disclosure.
The scheme of the family law legislation requires practitioners and the court to achieve mediated outcomes whenever possible. Confidential counselling services provided by family and child counsellors plays a critically important role in that exercise. It has the object of reconciling the parties or conciliating their dispute. In fact, s 65F of the Act provides that a court cannot ordinarily make a final parenting order unless either all the parties to the proceedings consent or have attended a conference with either a family and child counsellor or welfare officer.
The assurance of confidentiality improves the chances of reconciliation or conciliation. Without it parties are likely to be reluctant to participate fully and frankly in the process. For this reason counsellors are sworn to secrecy and as a ground rule what is said in counselling is without prejudice and legally immune from disclosure elsewhere.
While there are a number of discrete sources of confidentiality in the family law context, the only one referred to in argument here was s19N (now repealed).[10] That provision made evidence of voluntary admissions made to a counsellor conducting a family and child counselling session inadmissible in any court. The subsection prevails over the paramountcy principle in 65E.[11] However, the privilege is not an absolute one. Its exclusionary effect is qualified by a solitary exception found in s 19N(3) relating to statements by adults or disclosures by a child indicating past or possible future abuse unless in the opinion of the Court there is sufficient evidence of the admission or disclosure available to the Court from other sources. This provision was relied on by the respondent to justify subpoenaing Ms P.
[10] Replaced by s 10E by Family Law Amendment (Shared Parental Responsibility) Act 2006 from 1 July
2006.
[11]Centacare Central Queensland v G & K (1998) FLC 92–821. So too, as a matter of interest, does s 131 of the Commonwealth Evidence Act which also excludes, subject to exemption, reports of settlement negotiations between litigants and a third party: Northern Territory of Australia v GPAO (1999) FLC 92-838 at par [63]-[75].
Here, there is evidence in the applicant’s letter to the respondent’s lawyers dated 18 February 2006 that relevant disclosures were made during a counselling session and that the information was passed on to and investigated by the police, the department, and the children’s lawyer. Accordingly, the subpoena created an obvious tension between subsections 19N(2) and (3).
A s 19N(2) claim is most appropriately investigated by the trial judge in a r 15.26 proceeding [12] or on the voir dire at the trial. In that exercise oral or affidavit evidence on the basis of the privilege may be required subject to conditions such as limitations upon who may hear the evidence and whether it should be withheld or suppressed or subject to other appropriate restrictions.
[12]cf. r 15.33 a new rule providing for the court to compel a person to produce a document for the purpose of ruling on an objection to production on the grounds of privilege etc. See also J and J (1998) FLC 91-940; McLaren Holdings v McLaren (2000) FLC 93-030
Subpoenas directed to marriage counsellors were set aside in both Relationships Australia v Pasternak [13] and Centacare Central Queensland v G & K [14].
[13] (1996) FLC 92-699
[14] (1998) FLC 92-821
In Pasternak the first instance Judge allowed the legal representative to inspect privileged counselling records notwithstanding their inadmissibility by virtue of the operation of s 18(2) (the predecessor of s 19N) because they were relevant enough to assist their preparation for trial. Subject to relevant statutory exceptions, the Full Court held that subpoenaing the records was a misuse of the court’s processes and that s 18 protected the confidence of statements made during counselling from pre‑trial production and inspection as well as reception into evidence at trial.
The court made it clear that a non-party should not be required to produce for inspection private and confidential documents either via the subpoena process or third party discovery procedures.
In Centacare Central Queensland objections to subpoenae directed to a marriage counselling organisation to enable the husband to prove the wife’s admission to having an incestuous relationship with her father as a child were overruled by the trial judge on the basis that s 19N was displaced by the paramountcy principle and the importance of the evidence to the resolution of the residence issue justified its admission.
The Full Court took the view that subject only to limited and specific statutory exceptions such as s 19N(3) marriage counselling confidentiality was inviolate. The order requiring the production of the documents and the attendance of the counsellor to give oral evidence was set aside. The Court declined to deal with any matter relating to ‘first instance’ costs.
In Bishop and Bishop [15] Jordan J was called upon to decide the validity of a subpoena issued to a counselling organisation to produce documents. His Honour held that the documents were absolutely protected by s19N(2) and inadmissible in evidence.
[15] [2005] FamCA 621
The subpoena was set aside with costs of and incidental to the subpoena ordered against the issuing party.
Notably, none of the cases cited in pars 33 and 38 above involved an attempt to invoke subsection 19N(3) but Jordan J made obiter remarks in Bishop (at [24]) suggesting that a party trying to gain access to information relating to admissions or disclosures of child abuse under the exception bore a ‘heavy onus’.
Is RA entitled to a costs order here?
No, there is nothing in the conduct of the respondent justifying a conclusion that costs should be ordered against her. In particular, there is no proper basis for concluding that the respondent’s conduct in issuing the subpoena was abusive or otherwise inappropriate. It cannot fairly be assumed that she would have failed to satisfy the conditions in s 19N(3).
The correspondence between the disclosure made to Ms P and the information available from non-privileged sources was a matter about which, if the matter proceeded, the court would have had to form an opinion when determining RA’s r 15.26 application. That opinion would have had to be an informed one based in part on the evidence of Ms P who would, therefore, have had to attend court for that purpose in any event.
It follows that RA’s Form 2 filed 20 April 2006 has to be dismissed. Doubtless, the result may well have been very different if the subpoena had actually been set aside at or before trial.
I certify the preceding 43 numbered paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carmody
Dated the 22nd day of November 2006
Associate:………………………………………….
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