FAMILY COURT OF AUSTRALIA
| RYDER & LEE | [2009] FamCA 531 |
| FAMILY LAW – PRACTICE AND PROCEDURE – SUBPOENA – where the mother issued subpoenas for the production of documents directed to the father’s wife in her personal capacity and as the Managing Director of a company – objection to the production of documents – whether it is appropriate to seek the production of the documents from non-parties – whether the documents are relevant to the Court’s determination of competing applications for Child Support departure orders – whether the documents are sought for a legitimate forensic purpose – whether it would be oppressive to require production – whether the subpoenas should be set aside due to the asserted confidentiality of the documents sought – notice of objection dismissed – order for the documents to be produced to the Court |
| Child Support (Assessment) Act 1989 (Cth) ss 117 & 151B Family Law Rules 2004 (Cth) rr 4.26, 13.01, 13.07, 15.26, 15.27 15.31 & 15.33 |
| Hatton v Attorney- General of the Commonwealth of Australia & Commonwealth Bank of Australia & Commonwealth Development Bank of Australia (2000) FLC 93-038 Woley and Humboldt [2008] FamCA 699 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Anton and Malitsa [2009] FamCA 70 Grollo and Bussolaro and Victoria Square Pty Ltd [2006] FamCA 929 Macks v Tucker & Ors & QBE Insurance (Australia) Ltd (No. 4) [2007] SASC 255 Hunt v Judge Russell and de Pinto (1995) 63 SASR 402 Andrew Garrett Wine Resorts & Anor v National Australia Bank Limited (No. 6) (2005) 92 SASR 419 Senior v Holdsworth, Ex Parte Independent Televisions News Ltd (1976) 1 QB 23 Lane v The Registrar of the Supreme Court of New South Wales (1981) 148 CLR 245 Apache Northwest Pty Ltd and Others v Western Power Corporation (1998) 19 WAR 350 Seven Network v News Ltd (No. 5) (2005) 216 ALR 147 |
| APPLICANT: | Ms Ryder |
| RESPONDENT: | Mr Lee |
| OTHER PARTY: | Ms A |
| OTHER PARTY: | S Company Pty Ltd |
| FILE NUMBER: | ADF | 5495 | of | 1989 |
| DATE DELIVERED: | 17 June 2009 |
| PLACE DELIVERED: | Darwin |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Burr J |
| HEARING DATE: | 9 & 29 April, 5 May & 2 June 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mrs Lindsay and Mr McQuade |
| SOLICITOR FOR THE APPLICANT: | David Fidler & Co |
| COUNSEL FOR THE RESPONDENT: | N/A |
| SOLICITOR FOR THE RESPONDENT: | N/A |
| COUNSEL FOR THE OTHER PARTIES: | Mr Nicholas Swan and Mr Crocker |
| SOLICITOR FOR THE OTHER PARTIES: | Swan Lawyers |
Orders
That the Notice of Objection to subpoena filed on 28 May 2009 in relation to the two subpoenas to produce documents directed to Ms A and the Managing Director of S Company Pty Ltd and issued by the mother on 15 May 2009 is hereby dismissed.
That the documents sought pursuant to the aforesaid subpoenas be produced on or before 4.00pm on Friday 26 June 2009.
That liberty be granted to the parties to apply on three (3) days notice on the issues of costs and conduct money.
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- AGLC
- Ryder & Lee [2009] FamCA 531
- Case
- [2009] FamCA 531
- Decision Date
CaseChat Overview and Summary
In this matter before Burr J, the dispute concerned a Notice of Objection to subpoenas issued by the mother, seeking the production of documents from Ms A and the Managing Director of S Company Pty Ltd. The mother sought these documents in proceedings involving the father.
The court was required to determine whether the documents sought by the subpoenas were of sufficient apparent relevance to the proceedings, whether they were sought for a legitimate forensic purpose, and whether the subpoenas were oppressive. The objection was based on submissions that most of the documents sought were irrelevant to the principal trial issue, which concerned an examination of the father's income during relevant periods and potential departure orders from previous assessments.
Burr J reasoned that while subpoenas should not be used as a substitute for discovery from a party, their use against a non-party was appropriate given the history of the matter. The court noted that the non-party, Ms A, was closely connected to the father as his present wife, former business partner, and current employer. Applying principles from *Lane v The Registrar of the Supreme Court of New South Wales*, the court held that a subpoena must specify with reasonable particularity the documents required and that a subpoena should not be so wide as to be burdensome. Despite submissions that many documents were irrelevant, the court found that the documents sought were of sufficient apparent relevance and sought for a legitimate forensic purpose, and that the subpoenas were not oppressive.
The court ordered that the Notice of Objection to the subpoenas be dismissed and that the documents sought be produced by a specified date. Liberty was granted to the parties to apply on three days' notice regarding costs and conduct money.
The court was required to determine whether the documents sought by the subpoenas were of sufficient apparent relevance to the proceedings, whether they were sought for a legitimate forensic purpose, and whether the subpoenas were oppressive. The objection was based on submissions that most of the documents sought were irrelevant to the principal trial issue, which concerned an examination of the father's income during relevant periods and potential departure orders from previous assessments.
Burr J reasoned that while subpoenas should not be used as a substitute for discovery from a party, their use against a non-party was appropriate given the history of the matter. The court noted that the non-party, Ms A, was closely connected to the father as his present wife, former business partner, and current employer. Applying principles from *Lane v The Registrar of the Supreme Court of New South Wales*, the court held that a subpoena must specify with reasonable particularity the documents required and that a subpoena should not be so wide as to be burdensome. Despite submissions that many documents were irrelevant, the court found that the documents sought were of sufficient apparent relevance and sought for a legitimate forensic purpose, and that the subpoenas were not oppressive.
The court ordered that the Notice of Objection to the subpoenas be dismissed and that the documents sought be produced by a specified date. Liberty was granted to the parties to apply on three days' notice regarding costs and conduct money.
Orders
Orders of the court
1.
That the Notice of Objection to subpoena filed on 28 May 2009 in relation to the two subpoenas to produce documents directed to Ms A and the Managing Director of S Company Pty Ltd and issued by the mother on 15 May 2009 is hereby dismissed.
2.
That the documents sought pursuant to the aforesaid subpoenas be produced on or before 4.00pm on Friday 26 June 2009.
3.
That liberty be granted to the parties to apply on three (3) days notice on the issues of costs and conduct money.
Background
Background to the litigation
On the issue of a subpoena being used as a substitute for discovery, Mrs Lindsay also referred me to the decision of Lane v The Registrar of the Supreme Court of New South Wales (1981) 148 CLR 245 where at 259 the High Court stated:A subpoena to produce documents is an important means of establishing the facts in issue in litigation and thereby enabling justice to be done. (Emphasis added)The Court continued immediately thereafter:However, it is an instrument which may be misused. It is not right that a subpoena addressed to a person who is not a party to the action should be in such wide and general terms that it requires the witness to make a "burdensome search for evidence at his own expense", to use the words of Page Wood V.C. in Lee v. Angas [18] , at p. 63. To avoid putting a person who may have no interest in the suit to inconvenience and expense, a subpoena to produce documents must "specify with reasonable particularity the documents which are required to be produced": Commissioner for Railways v. Small [19] , at p. 573. Mrs Lindsay has referred to the difficulties in obtaining discovery from the father. While subpoenas should not be used in effect as an alternative to obtaining discovery from a party, given the history of this matter, it is appropriate to seek the documents by subpoena to a non-party. Here too, the non-party is hardly a stranger, being the present wife, former business partner and now employer of the father. The issue for determination is whether the documents sought are of sufficient apparent relevance to the proceedings and are sought for a “legitimate forensic purpose”, and also whether the subpoenas are oppressive. Counsel for Ms A correctly identifies that the principal issue for determination in the trial will be an examination of the father’s income during the relevant periods and a determination as to whether any departure orders from previous assessment should be made. It is submitted on behalf of Ms A, in her personal capacity and as the Managing Director of S Company that most of the documents sought are of no relevance to this issue. It is acknowledged that the father’s group certificates and a summary of the father’s wages may be relevant to the issues at trial and that these documents have therefore been produced to the Court. Ms A has also produced the relevant pages of the company’s bank statements in relation to the two payments made on or about 22 August 2005 and January 2006 referred to previously. Ms A objects to the production of any further documents, however. It is submitted that the documents are irrelevant as the father owns no shares in the company, no payments have been made by the company to the father other than wages and no payments have been made by Ms A to the father. Addressing the issue of relevance and forensic purpose, Mrs Lindsay referred to the father’s evidence with respect to the history of his interest in the company, as outlined in his affidavit filed on 6 August 2008. Mrs Lindsay highlighted that at paragraph 14 of that affidavit, the father states that Ms A took over the day to day administration of the company from him in 1998 at which time he ceased to be a director, secretary or shareholder of the company. The father claimed that the business was “not performing well” at this time.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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