Ryder and Lee
[2008] FamCA 1187
•23 December 2008
FAMILY COURT OF AUSTRALIA
| RYDER & LEE | [2008] FamCA 1187 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Wife issued subpoena to father’s solicitors in civil proceedings seeking information regarding costs incurred and by whom they were paid – objection to subpoena filed by father’s solicitors – no express provision in Family Law Rules for setting aside a subpoena but the power of the Court to do so is accepted or assumed – the father’s child support income is in issue therefore records of payments made by father to his lawyers in civil proceedings are relevant – privilege does not attach to entries in a solicitor’s trust account ledger unless the entries record communications themselves or costs agreements – professional privilege does not attach to information regarding costs incurred and paid and by whom those costs were paid – a claim of confidentiality usually dealt with by the Court restricting access to and use of documents produced pursuant to subpoena, not generally a ground for setting aside subpoena – no basis in any of the grounds of objection |
| Family Law Rules 2004, r 15.26, r 15.27, r 15.33 | |
| Hatton v Attorney General of the Commonwealth of Australia & Commonwealth Bank of Australia & Commonwealth Development Bank of Australia (2000) FLC 93-038 Heydon JD, Cross on Evidence, at [25225] | |
| APPLICANT: | Ms Ryder |
| RESPONDENT: | Mr Lee |
| INTERVENOR: | F Barristers and Solicitors |
| FILE NUMBER: | ADF | 5495 | of | 1989 |
| DATE DELIVERED: | 23 December 2008 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Burr J |
| HEARING DATE: | 2 December 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McQuade |
| SOLICITOR FOR THE APPLICANT: | David Fidler |
| COUNSEL FOR THE RESPONDENT: | Mr Childs |
| SOLICITOR FOR THE RESPONDENT: | Georgiadis Lawyers |
| COUNSEL FOR THE INTERVENOR: | Mr Kidman |
| SOLICITOR FOR THE INTERVENOR: | F Barristers and Solicitors |
Orders
That the Notice of Objection to subpoena filed by F Barristers and Solicitors on 28 November 2008 in relation to the subpoena to produce documents directed to them and issued by the mother on 6 November 2008 is hereby dismissed.
That the time for compliance by F Barristers and Solicitors to produce the documents pursuant to the aforesaid subpoena be extended to on or before 4.00 pm on Friday 30 January 2009.
That leave be granted to the parties to inspect and copy the documents produced pursuant to the aforesaid subpoena.
IT IS NOTED that publication of this judgment under the pseudonym Ryder & Lee is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADF 5495 of 1989
| MS RYDER |
Applicant
And
| MR LEE |
Respondent
REASONS FOR JUDGMENT
I have before me for determination an objection by F Barristers and Solicitors to a subpoena to produce documents issued to them by the mother. F Firm seeks that the subpoena be set aside. They also oppose leave being granted to the mother to reissue the subpoena. They seek costs.
These are long running proceedings. The current issue for determination by the Court relates to Child Support matters. Both parties seek departure orders with respect to various administrative assessments of child support payable by the father made since 1998, in relation to the parties’ two children, a daughter, J, born in April 1989 and a son, L, born in April 1991.
The parties’ competing applications for departure orders were heard by Bell J in May 2007, and his Honour made orders on 8 May 2007. An appeal against those orders was allowed, the Full Court setting aside the orders and remitting the matter for hearing.
F Firm act for the father in proceedings in the District Court of South Australia, being proceedings for defamation commenced by the father against the mother and a media outlet.
On 12 August 2008 I granted leave to the mother to issue and serve a number of subpoenas to produce documents, including to the Managing Partner of F Firm.
The mother first issued a subpoena to the Managing Partner of F Firm on 12 August 2008 seeking production of:
“Firm Account and Trust Account and other banking records which record paymentsmade [sic] for fees and disbursements from [the husband], [the husband’s current wife Ms A] or [S Pty Ltd] in relation proceedings [sic] issued against [the wife] and [a media outlet] being District Court Action No. […] of 2008 and all preparatory and other work in relation to it.”
On 19 September 2008 F Firm filed a Notice of Objection to the production of documents under the subpoena on the following grounds:
1.The documents sought ar enot [sic] relevant.
2.The subpoena is an abuse of process.
3.The documetns [sic] sought are subject to legal professional privilege.
4.Conduct money has not been tendered.
5.The subpoena was not properly served.
On 23 October 2008 I granted leave to the mother to issue and serve a subpoena on the Managing Partner of F Firm “directed to securing information as to what, if any, costs and disbursements have been paid to that firm by the husband [Mr Lee] or [S] Pty Ltd.”
On 6 November 2008 a further subpoena was issued to the Managing Partner of F Firm seeking production of:
“All receipts and other documents, whether written or electronic, including but not so as to limit the generality thereof, all accounts, bills of costs and disbursements, accounts rendered, Trust Account Statements and any other statement or record issued in respect of fees and disbursements incurred by [the husband] or on his behalf, in respect of and incidental to proceedings issued against [the wife] being District Court Action No. […] of 2008 including all work preparatory and or incidental thereto.”
On 28 November 2008 F Firm filed a Notice of Objection to the production and inspection/copying of documents sought pursuant to the further subpoena on the following grounds:
1. The documents sought are not relevant.
2. The subpoena is oppressive, fishing and an abuse of process.
3. Many of the documetns [sic] sought are confidential and subject to legal professional privilege.
Family Law Rules 2004 (Cth)
Part 15.3 of the Family Law Rules 2004 (Cth) addresses the issuing of subpoenas. The following rules in particular are relevant:
Rule 15.26
Objection to subpoena
If a named person or a person having sufficient interest in a subpoena:
(a)seeks an order that the subpoena be set aside in whole or in part;
(b)objects to the production of a document required by the subpoena;
(c)seeks to be paid for any loss or expense relating to the person’s attendance, or the production of a document, in compliance with the subpoena; or
(d)seeks any other relief in relation to the subpoena;
the person must attend court on the court date to apply for the order.
Note An application to set aside a subpoena issued in an appeal will be listed for determination before the court hearing the appeal.
…
Rule 15.33
Claim for privilege
The court may compel a person to produce a document to the court for the purpose of ruling on an objection to the production of the document under a subpoena for production.
F Firm did not bring the documents to Court for the purposes of ruling on their objection.
Unlike the Federal Court Rules,[1] there is no express provision in the Family Law Rules for the setting aside of a subpoena. However, the power of the Court to set aside a subpoena has long been accepted or assumed by the Court. (See Hatton v Attorney-Generalof the Commonwealth of Australia & Commonwealth Bank of Australia & Commonwealth Development Bank of Australia (2000) FLC 93-038 at 87,598, referring to Sharpe and Dalton (1990) FLC 92-167; Epstein (1993) FLC 92-384; White and Tulloch v White (1995) FLC 92-640; Re Z (1996) FLC 92-694 at 83,240; and Relationships Australia v Pasternak (1996) FLC 92-699).
[1]Federal Court Rules, Order 27, rule 4.
Grounds of Objection
Relevance
Lack of relevance is a sufficient ground in itself to set aside a subpoena. (See Hatton v Attorney- General (supra) at 87,606). The onus is on the applicant to establish that the documents sought pursuant to the subpoena are relevant. In Family Court proceedings, where there are no pleadings, relevance is to be determined by reference to the affidavit material filed. (See Hatton v Attorney- General (supra) at 87,607 and more recently Woley & Humboldt [2008] FamCA 699).
It therefore needs to be determined whether the documents sought pursuant to the subpoena from the father’s solicitors are relevant to the issue for determination by the Court, namely issues of Child Support. As determined in Hatton v Attorney General (supra), this is to be determined by reference to affidavit material.
The issue in dispute is the level of child support the father has been assessed as being liable to pay, with both parties seeking departures from numerous administrative assessments made since 1 July 1998. The mother seeks that the father’s child support income be increased for these periods. The mother seeks orders with respect to assessments of child support up to April 2008 (being the day before the child L turned 18 years) and if L is enrolled in secondary education in 2009, until the end of the school year in 2009.
The father’s income and financial circumstances are of primary relevance to the determination of his child support income. As the father’s financial circumstances are in issue, records of payments made by the father to his lawyers with respect to the District Court matter and who made such payments may be potentially relevant. It was submitted by counsel for the mother that such information may assist the Court in assessing the financial resources available to the father and his capacity to pay child support.
In L & D & Child Support Registrar [2004] FamCA 523, an unreported decision of Coleman J hearing an appeal from a decision of a Federal Magistrate, a subpoena had been issued in a child support matter by the wife to the husband’s new wife. Coleman J found that as the husband had put in issue his capacity to pay child support, the financial arrangements he had with his present wife were potentially relevant to the proceedings.
Mr Kidman for F Firm submitted that in her affidavit filed 5 August 2008 the mother does not refer to the defamation proceedings or address how documents in relation to those proceedings are relevant to the matter before this Court, despite these proceedings having been commenced by the father at the time the mother swore her affidavit. However, as I pointed out to Mr Kidman, the issue is not the relevance of the District Court proceedings per se, but rather the costs incurred and paid by the father with respect to those proceedings.
It was also submitted that the documents sought would be of marginal probative value. Proceedings before this Court relate to Child Support assessments dating back to 1998 and F Firm only commenced to act for the father in early 2008. It was submitted therefore that any information held by F Firm could not assist the mother with respect to periods prior to 2008.
While F Firm have only acted for the father since early 2008 and therefore information in their possession only relates to a short period of time in the context of proceedings where the parties seek departure orders from administrative assessments of child support dating back to 1998, I consider that the costs incurred and paid by the father with respect to the proceedings instituted in the District Court and by whom those costs were paid (thus his ability to fund such proceedings) are issues which are relevant to the father’s financial circumstances and the matters before this Court for determination. This ground of objection is therefore without basis.
Abuse of Process
F Firm argues that the subpoena is an abuse of process, specifically that it is oppressive and that the wife is “fishing”.
A subpoena may be set aside for being oppressive where the subpoena places an unreasonable burden on the person to whom the subpoena is issued, for example the documents sought are not sufficiently specified, the person will be put to unreasonable expense or effort or will be required to make a judgment regarding the relevance of documents. (See Commissioner for Railways v Small (1938) 38 SR (NSW) 564).
F Firm submitted that the subpoena was oppressive due to the breadth of its terms, namely that it seeks both written and electronic documents. Mr McQuade for the mother clarified that the only information sought by the mother was the costs which had been incurred by the father, the amount paid and by whom costs have been paid in relation to the proceedings in the District Court.
In my view the subpoena is not oppressive. The documents sought pursuant to the subpoena are identified with sufficient particularity for F Firm to be able to identify the required information/ documents sought. The only information sought is the costs incurred, the costs paid and by whom.
It was also submitted that it is only due to the mother’s own conduct that the father instituted defamation proceedings in the District Court, thus incurring legal costs in the context of those proceedings, and that it is an abuse of process for the mother to now seek information which relates to those proceedings. I do not consider there is substance in this ground of objection. Once again, the purpose for which the subpoenaed information is sought is in relation to the father’s financial circumstances.
A subpoena to produce documents may also be set aside where it is considered to be “fishing”. In Commissioner for Railways v Small (supra) Jordan CJ stated at 575:
“"... a party is no more entitled to use a subpoena duces tecum than he is a summons for interrogatories, for the purpose of "fishing", ie endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all... or to discover the nature of the other side's evidence..."
This explanation of the term “fishing” was adopted by Young J in G and B and Anor [2006] FamCA 929 (unreported). (See also discussion in Adelaide Steamship Co v Spalvins (1997) 24 ACSR 536.) Documents sought pursuant to subpoena must also be sought for a legitimate purpose related to the case.
I do not accept that the subpoena amounts to “fishing” on the mother’s part. The mother seeks documents relating to the costs incurred and paid by the father in respect of the District Court proceedings. Obviously costs have been incurred by the father in those proceedings. The mother wants to know the extent of those costs and who has paid those costs in the context of this court determining the father’s financial circumstances.
Legal Professional Privilege
Legal professional privilege applies to protect confidential communications (whether oral or written) between a client and their legal adviser where the dominant purpose was the giving or receiving of legal advice or for use in existing or anticipated legal proceedings. (See Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49).
Legal professional privilege can be waived expressly, or impliedly where the conduct is inconsistent with the maintenance of the privilege. (See Mann and Carnell (1999) 201 CLR 1 at [28] – [29] and Stamp and Stamp (2007) FLC 93-314. In Macquarie Bank Pty Ltd & B & Anor (2006) FLC 93-290, Le Poer Trench J (at paragraph 50) outlined the matters about which the Court needs to be satisfied before it would rule that privilege has been waived and production of documents ordered.
The issues for determination here with respect to the claim of legal professional privilege are therefore whether privilege applies to the documents sought to be produced pursuant to the subpoena, and if it does, whether privilege has been waived.
However, privilege does not attach to entries in a solicitor’s trust account ledger unless the entries record communications themselves, (see Packer v Deputy Commissioner of Taxation (Qld) (1984) 55 ALR 242) or costs agreements (see Cook v Pasminco Ltd (No 2) [2000] FCA 1819 at [47]).
Cross on Evidence states:[2]
“While bills of costs may be privileged, as recording the progress of a transaction and as disclosing the nature of communications trust account ledgers are normally not, and nor are memoranda of fees, backsheets and the like which do not disclose the nature or extent of privileged material. Nor are records of time on an attendance note, time sheet or fee record, since they are not communications and have nothing to do with obtaining legal advice. So far as a costs agreement is a bundle of mutual and reciprocal commitments between instructing solicitor and client, it is not privileged, though so far as it records legal advice it is.” (Footnotes omitted)
[2] Justice JD Heydon, Cross on Evidence, LexisNexis Online at [25225] “Legal Professional Privilege – B Operation of the rule” (Accessed online 10 December 2008).
I do not consider that professional privilege attaches to the information sought by the mother, namely the costs incurred and paid, and by whom those costs were paid. Privilege would attach if such documents disclose or record communications or advice. Counsel for the mother expressly stated they do not wish to have access to any document relating to the content of legal advice given.
I therefore decline to set aside the subpoena on the ground of legal professional privilege.
Confidentiality
An objection to the subpoena is also raised on the ground that the documents are confidential. Confidentiality of documents is not generally a ground for setting aside a subpoena to produce documents, and a claim of confidentiality is usually dealt with by the Court restricting access to, and the use of, documents produced pursuant to the subpoena.
Rule 15.27 provides:
(2) A person who inspects or copies a document under these Rules or an order must:
(a) use the document for the purpose of the case only; and
(b) not disclose the contents of the document or give a copy of it to any other person without the court’s permission
It was submitted on behalf of F Firm that the question of confidentiality of the information arises due to the fact the mother has the same solicitors representing her in both the proceedings in this Court and the District Court proceedings. It was submitted the mother may thus gain some “tactical advantage”.
Counsel for F Firm referred me to a decision of the Supreme Court of Western Australia, Apache Northwest Pty Ltd and Others v Western Power Corporation (1998) 19 WAR 350, it which the Court approved (at 380) the approach taken by the trial judge where her Honour accepted that, although confidentiality is not a ground on its own for setting aside a subpoena, it is a factor to be taken into account.
I do not consider that confidentiality of the documents is a sufficient ground upon which to set aside the subpoena. Rule 15.27 makes it clear that documents produced under subpoena are only to be used for the purposes of the case and are not to be disclosed.
Conclusion
I find there is no basis in any of the grounds of objection made by the father’s solicitors given the limited nature of the material sought by the mother. The documents sought pursuant to the subpoena are to be produced by F Firm. I extend the time for compliance with the subpoena to on or before 4.00 pm on Friday 30 January 2009.
I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr.
Associate:
Date: 23 December 2008
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