Sadek and Ors & Hall and Anor
[2015] FamCAFC 23
•20 February 2015
FAMILY COURT OF AUSTRALIA
| SADEK AND ORS & HALL AND ANOR | [2015] FamCAFC 23 |
| FAMILY LAW – APPEAL – LEAVE TO APPEAL – Practice and procedure – Subpoenas – Where appellants seek leave to appeal against orders refusing to set aside subpoenas – Where the subpoenas to produce documents are in relation to the wife’s deceased father’s will and estate – Where the appellants argue that the subpoenas were oppressive and constituted a “fishing” exercise – Where the appellants argue that the production of the documents was not necessary – Whether service of an affidavit disclosing part of the contents of the documents rendered production unnecessary – Where the appellants argue the documents required under subpoena are subject to client legal privilege, confidential and inadmissible in these proceedings – Where there is an injunction in place to protect the privacy of the parties and third parties – Section 121 of the Family Law Act 1975 (Cth) – Where leave to appeal is refused. |
| Family Law Act 1975 (Cth), s 94AA(1), s 114, s 121 Family Law Rules 2004 (Cth), r 15.27 |
| Bruce F McLaren Holdings Pty Ltd and Ors & McLaren & McLaren (2000) FLC 93-030 Harman v Secretary of State for the Home Department [1983] 1 AC 280 Harris Scarfe Limited (Receivers and Managers Appointed) (in liq) v Ernst & Young (No 10) (2006) 204 FLR 165 Hatton v The Attorney-General(Cth) (2000) FLC 93-038 Hearne v Street (2008) 235 CLR 125 Rutherford & Rutherford (1991) FLC 92-255 |
National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372
Sitwell & Sitwell (2014) 51 Fam LR 159
| APPELLANTS: | Mr F Sadek, Mr C Sadek, Mr E Sadek and Ms D Sadek |
| 1ST RESPONDENT: | Mr Hall |
| 2ND RESPONDENT: | Ms Hall |
| FILE NUMBER: | ADC | 3671 | of | 2013 |
| APPEAL NUMBER: | SOA | 41 | of | 2014 |
| DATE DELIVERED: | 20 February 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Thackray, Strickland & Aldridge JJ |
| HEARING DATE: | 13 November 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 June 2014 |
| LOWER COURT MNC: | [2014] FamCA 407 |
REPRESENTATION
| COUNSEL FOR THE APPELLANTS: | Mr Whitington QC and Mr Doyle |
| SOLICITOR FOR THE APPELLANTS: | Shaw Lawyers |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr O'Shannessy |
| SOLICITOR FOR THE 1ST RESPONDENT: | Kennedy Partners |
| COUNSEL FOR THE 2ND RESPONDENT: | Ms Kari |
| SOLICITOR FOR THE 2ND RESPONDENT: | Barnes Brinsley Shaw |
Orders
The application for leave to appeal filed 11 July 2014 be dismissed.
The interim order made on 13 November 2014 be discharged.
The appellants pay the first respondent’s and second respondent’s costs of and incidental to the appeal as agreed or in default of agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sadek and Ors & Hall and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 41 of 2014
File Number: ADC 3671 of 2013
| Mr F Sadek, Mr C Sadek, Mr E Sadek and Ms D Sadek |
Appellants
And
| Mr Hall |
First Respondent
And
Ms Hall
Second Respondent
REASONS FOR JUDGMENT
Introduction
By a Notice of Appeal filed 11 July 2014, Mr F Sadek, Mr C Sadek, Mr E Sadek and Ms D Sadek (“the appellants”) seek leave to appeal and if leave is granted, to appeal against the orders of Dawe J made on 17 June 2014, refusing to set aside subpoenas that had been served upon them. They also seek to appeal against the injunction made by her Honour limiting the persons to whom the parties could give the documents produced on subpoena, asserting that it inadequately protected their interests.
The primary judge made the following orders:
(1)The four Notices of Objection filed on 10 January 2014 are dismissed.
(2)The subpoenaed persons comply with the subpoena within fourteen [14] days from today.
(3)Each party is restrained and an injunction is granted restraining them from providing any information or copies of any documents obtained from the subpoenas to any person other than their legal representatives and any person assisting the legal representatives as experts in these proceedings.
Before the primary judge, the appellants contended that although the documents sought by the subpoenas might have apparent relevance to the proceedings, an affidavit sworn by the solicitor for the appellants provided all the information relevant to the proceedings, so production of the documents themselves was not necessary. It was contended that the privacy of the appellants’ affairs required the documents not to be produced or to be produced in a redacted form. It was contended that the primary judge herself could inspect the document to determine whether the solicitor’s affidavit fully disclosed the relevant information.
Finally, and very much as a fall-back position, it was submitted that if the court was not minded to set the subpoenas aside, it should make appropriate orders for the suppression of any information disclosed by their production.
Background
The appellants are the three brothers and mother of Ms Hall (“the wife”), who is engaged in property proceedings with her husband Mr Hall (“the husband”). In the course of seeking financial disclosure from the wife, the husband asked the wife for details of her interest in the estate of her father who died in 2009. When the wife informed the husband that she had no knowledge of any interest in the estate, the husband served upon each of the appellants a subpoena seeking production of the following documents:
1.A copy of the Will (and any related documents) of your father the late MR [G SADEK] who died in 2008.
2.A Statement of the assets and liabilities of his Estate and/or such documents that set out the assets and liabilities of his Estate.
3.A copy of Probate of the said [G SADEK’S] Will.
4.Any Deeds, documents or other written material relating to variations of his Will or a Deed of Family Arrangement or Deeds of Family Arrangements.
5.Any written advice and/or documents in relation to the winding up or delay in winding up of his Estate.
On 10 January 2014 each of the appellants filed a Notice of Objection to their subpoena in identical terms. The reasons given for the objection were:
1. Subpoena is oppressive, seeks irrelevant documents (“Fishing”).
2.Documents subject to client legal privilege, confidentiality and inadmissible in these proceedings.
On 20 February 2014 the solicitor for the appellants filed an extensive affidavit supporting the objections to the subpoenas. The solicitor deposed that he prepared a will for the late Mr G Sadek on 30 January 2009 (“the will”). He then extensively summarised the effect of the will, identifying the freehold properties and the company shares held by the deceased, and his personal effects, and summarised the disposition effected by the will of each of those assets.
The solicitor then deposed that the wife was only mentioned in one clause and one annexure to the will. He then set out that clause and annexure in full. The affidavit continued by stating that there was no grant of probate, that one was not necessary, and that the Executor of the estate had instructed him to make an application for a limited grant of administration for the specific purpose of transferring the estate’s interest in the freehold properties identified in the will.
The affidavit then went on to record concerns held by the appellants as to the effect that public disclosure of the information contained in the documents the subject of the subpoenas might have on their personal safety and security, and that of their families, indicating that the material sought contained sensitive, confidential and personal information.
Primary judge’s Reasons
After referring to the will and noting the above submissions, her Honour continued at [36] – [40]:
36.It was maintained on behalf of the objectors that the only significance of the Will is the extent to which it makes provision for the wife. It is then maintained that the affidavit of the legal practitioner is sufficient to provide that information and that “accordingly there is now no legitimately forensic purpose in requiring production of the Will”.
37.It is then asserted at paragraph 8 of the objector’s outline of argument:
“Production would not add to the admissible evidence of any question in the proceedings, and having regard to the well-founded and reasonable concerns of the objectors in relation to disclosing confidential and sensitive information concerning the family, the estate and the [V] Group … it would be oppressive to require production”.
38.The affidavit itself clearly indicates that there are certain provisions of the Will which are relevant to determining the assets and financial resources of the wife in these proceedings. Indeed, the wife’s own Statement of Financial Circumstances refers to her possible interest in the estate as a financial resource.
39.Simply because a legal practitioner provided particulars of the clauses in the Will which he considers to be relevant does not overcome the obligation to produce the relevant document in its entirety if the document is available.
40.I do not accept the submission that the production would not add to admissible evidence on any question in the proceedings. It is clearly a document which has forensic relevance and is a document which has sufficient clear connection to the issues to be determined in this case to require its production and inspection.
(Original emphasis)
Her Honour considered the question of disclosure of confidential information and continued at [41] – [43]:
41.The question of disclosure of confidential and sensitive information concerning the family, the estate and the [V] Group is not a significant factor which would overcome the need to comply with the general obligation. In particular, the law makes it clear that there is an obligation upon the parties to the proceedings, and anyone else into whose hands the documents come, not to use the documents or the information contained therein for any purpose other than the current proceedings.
42.Many decisions of this court and the Rules indicate that the purpose of the obligation is to protect privacy and encourage frank disclosure in litigation.
43.If this indication on the law is not sufficient to overcome the concerns of the objectors about privacy the Court also has the capacity to specifically order that the parties be restrained by injunction from disclosing any of the material or information to anyone at all other than those advising the parties in relation to these proceedings.
Her Honour then turned to the objections to the particular categories of documents sought by the subpoenas and found that the terms of the categories were not too wide or oppressive. As to item 5 her Honour said at [50] – [51] and [55] – [56]:
50.Item 5 of the subpoena is “any written advice and / or documents in relation to the winding up or delay in winding up of his Estate”. The objection to this material is on the basis that again no foundation for the relevance has been made. It is also maintained that this is a “fishing” exercise and therefore objectionable. It is also argued that the breadth is too vast and therefore presumably oppressive. The objection is also on the basis that the documents “may plainly capture documents immune from production by virtue of legal professional privilege”.
51.Documents which are the subject of legal professional privilege should be disclosed and the appropriate claim made to seek exception for production on the ground of legal professional privilege. This ground does not prevent the documents being identified, rather it prevents them having to be provided for inspection if the legal professional privilege is appropriately claimed.
…
55.Taking into account the affidavit material of the legal practitioner and the significant relevance of the possible interest of the wife in the estate of her late father, I do not find that the subpoenas are an exercise in “fishing” or that the documents lack relevance.
56.Whilst the phrasing of the item in category 5 is wide in that it refers to “documents in relation to the winding up or delay in winding up the Estate”. I do not consider that the breadth of this is so wide as to make the request oppressive. This is particularly so bearing in mind the potential size of the estate and the considerable delay since July 2009 in obtaining probate or the lack of information concerning the winding up of this potentially large estate.
(Original emphasis)
Her Honour referred to s 121 of the Family Law Act 1975 (Cth) (“the Act”) and Sitwell & Sitwell (2014) 51 Fam LR 159 saying at [22] – [23]:
22.The Full Court decision of Sitwell & Sitwell [2014] FamCAFC 5 discussed the law in relation to an injunction which was sought to protect the privacy of one of the parties. After discussing a significant number of authorities, the Full Court referred to:
“the fundamental question in this appeal relates to the circumstances in which an injunction can be granted to prevent a threatened or anticipated breach of Family Law Act section 121” (Paragraph 64).
23.It was concluded that:
“68.In our opinion, the injunctive relief sought on 21 October 2013 merely restated, or restated the primary effect of, FLA s 121. In the absence of "special circumstances", therefore, it was unnecessary and undesirable for the Court to grant the relief. No "special circumstances" were identified before Johnston J, and none existed. Similarly, no "special circumstances" were identified before us. It follows that his Honour's decision to dismiss the wife's application was entirely proper, and that the appeal must therefore be dismissed.”
(Original emphasis)
Her Honour continued at [58] – [59]:
58.In the Full Court decision of Sitwell & Sitwell (Supra) the Full Court discussed the capacity of the Court to grant an injunction in terms similar to s 121 of the Act. It was indicated that such an injunction should not merely restate the effect of s 121 but that each case should clearly be considered on its merits. Reference was made to the need to provide special circumstances before making an injunction under s 114 of the Act.
59.I am satisfied in this case that the injunction to be granted is not merely a restatement of s 121 as it is not limited to information being provided to the media or a section of the public, but is an injunction which in its wider terms will protect the privacy of the wife’s family.
Application for leave to appeal
The appellants accepted that as the decision of the primary judge was an interlocutory decision, leave to appeal pursuant to s 94AA(1) of the Act was required. In considering an application for leave to appeal, the court will consider whether there has been an error of principle and whether the decision appealed from is one which works a substantial injustice to one of the parties (see Bruce F McLaren Holdings Pty Ltd and Ors & McLaren & McLaren (2000) FLC 93-030; Rutherford & Rutherford (1991) FLC 92-255).
We will return to the issue of leave after we have considered the grounds of appeal, given that these grounds also encapsulate the basis of the application for leave.
Grounds of Appeal
Ground One
1.The learned primary judge erred in dismissing the objections to the subpoenas (in whole or in part) in respect of category 1 in the subpoena, in that:
1.1the learned primary judge erred in applying the proposition that just because a legal practitioner provides particulars of clauses in the will which he considers relevant does not overcome the obligation to produce the relevant document in its entirety if the document is available (judgment [39]);
1.2there was no challenge to the practitioner’s deposition, and no basis to go behind the evidence that to the extent that the will was relevant, its contents had been disclosed (cf. Mulley v Manifold (1959) 103 CLR 341);
1.3if it was accepted that the described portions of the will were relevant, and that the original document should be produced, it was appropriate to permit the irrelevant balance of the document to be masked (and for the Court to inspect the will to satisfy itself as to the appropriateness of the masking) (cf. Harris Scarfe Ltd (in liq) v Ernst & Young (No 10) [2006] SASC 325 in the context of inter partes discovery; it is submitted that even greater flexibility should apply to non-parties);
1.4the learned primary judge erred in concluding that the confidentiality and sensitivity of the information contained in the balance of the will was not relevantly a significant factor (judgment [41]).
In the well-known decision of National Employers Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372, Moffitt P identified the three steps in the procedure of having a third party bring documents to court pursuant to a subpoena and their use thereafter.
The first step is the witness obeying the subpoena by bringing the documents to the court. At that stage the court should determine any application of the witness to the subpoena and any dispute concerning the production of the documents to the court. His Honour gave examples of the circumstances in which an application might be made and as one such example said at 382:
A witness might argue the documents must be sought for some undefined spurious reason, as they have no conceivable relation to the proceedings. The court would jealously consider any of such submissions having regard to the invasion of the private rights of the stranger occasioned by the operation of the subpoena.
The second step identified by Moffitt P was the consideration of the court granting access to the documents after their production to the court. At 384 Moffitt P said:
It is true that, in the exercise of the power in relation to the subpoena, the invasion of the rights of a third party have been jealously guarded. It is accepted that the documents should not go beyond the judge against objection of the owner, unless there is valid reason to do so. It is clear that it can only be legitimate to do so, so far as it is necessary in the proper conduct of litigation. It is difficult to see why to do that which is “requisite for the purpose of justice” should be restricted by some arbitrary limit. Of course, the concept of what is requisite for the purpose of justice, and how the compromise between the requirements of justice between litigants and the rights of a stranger should be met, may change and, indeed, be different now from the concepts of last century, just as concepts as to what is appropriate between parties has changed in favour of fuller disclosure of relevant matters.
…
So as far as factual matters are concerned, the proper conduct of the litigation can only be that which fairly leads to the introduction of all such evidence as is material to the issues to be tried, and the testing of that evidence by the accepted procedures of the court. The only legitimate purpose of requiring the production, and permitting the inspection, of a stranger’s documents can be to add, in the end, to the relevant evidence in the case.
The third step is the admission of such evidence as may be admissible into evidence.
In another equally well-known decision, namely Hatton v The Attorney-General(Cth) (2000) FLC 93-038 at 87,606, the Full Court said “the present state of authority is such that lack of apparent relevance will be a sufficient ground in itself to set aside a subpoena”.
From these authorities the appellants draw two propositions. The first is that in considering an objection to a third-party subpoena, the court is required to take into account the requirement of necessity. The second proposition is that if there is sufficient disclosure, as in the present case, of the nature and extent of the wife’s benefit under the will, the document itself then ceases to have apparent relevance or any relevance.
It is submitted that her Honour, in paragraphs 39 to 41 of her reasons referred to earlier, did not take these propositions into account.
Given that the appellants accept that the documents sought in the subpoenas had apparent relevance to the proceedings, the subpoenas were appropriately issued. It was appropriate for the husband to serve the subpoenas upon the appellants because the husband had no other means of identifying what (if any) interest the wife had in her late father’s estate. It is clear that her Honour had regard to this by finding that the will was a document which had “forensic relevance” and “sufficient clear connection to the issues to be determined in this case to require its production and inspection”. In doing so her Honour did not depart from the principles set out in Waind and in Hatton & The Attorney General.
A stranger’s documents will be made available to the parties in the proceedings where that is requisite for the purpose of justice. Although, as Moffit P said, the documents will be made available so far as is necessary for the proper conduct of the litigation, that necessity will generally be met by the documents having apparent relevance to the issues in the proceedings. As was pointed out by his Honour, concepts of disclosure, and particularly its extent, vary. In this court there is a heavy obligation on parties in property cases to make complete disclosure. The requirements of justice, in those cases, may well require a stranger to disclose those documents more fully than in other courts where there are lesser requirements for disclosure.
The nature and extent, if any, of the wife’s interest in her late father’s estate is clearly a relevant issue in the property proceedings. As the wife was unable to provide any information as to what interest she might have in that estate, the husband was forced to look elsewhere for that information. It was in the interests of justice for that relevant information to be provided to the husband. In short, it is necessary that relevant information, in this case, documents, be made available. It follows that the appellants’ submission that necessity informs relevance but is a separate ground to relevance cannot be accepted.
The essential complaint of the appellants is that, having regard to the solicitor’s affidavit, production of the documents was still required.
Whilst it may be accepted that the solicitor for the appellants has, as far as he is aware, faithfully recorded what he regards as all relevant information from the will in his affidavit, it is possible that others might not take the same view. The “gift” to the wife in this case is of an unusual nature. It could be relevant, for example, to see if other persons were given similar gifts and whether those gifts were perfected.
In Harris Scarfe Limited (Receivers and Managers appointed) (in liq) v Ernst & Young (No 10) (2006) 204 FLR 165, Debelle J cautioned against relying on an affidavit of a solicitor on the issue of relevance. His Honour said:
45…In addition, while legal practitioners undoubtedly are subject to “an uncompromising ethical obligation” to make true and honest disclosure of relevant documents, it is unrealistic, if not naïve, to believe that obligation is always honoured. I do not suggest that the parties in this case have deliberately ignored that obligation. However, in substantial litigation of this kind where the stakes are high and legal practitioners have a natural desire that their client should prevail in the litigation, there is a real capacity for an unconscious departure from the uncompromising ethical obligation. Examination of the document by the judge is a means by which the interests of the parties are fairly balanced and the interests of justice served.
46…The next question is whether I should treat the affidavit of Ms Warner as conclusive on the issue of relevance. I am not prepared to do so. Ms Warner does no more than assert that the masked clauses are irrelevant. I am not prepared to accept that bare assertion notwithstanding that Ms Warner might conscientiously believe it to be true. In my view, this is a case where the court is obliged to examine the document in order fairly and sensibly to adjudicate the issue between the parties.
Accordingly, her Honour did not err in a matter of principle in finding that the affidavit of the solicitor did not overcome the need for production of the document. Her Honour was doing no more than finding that, notwithstanding the information provided in the affidavit, the will and the other documents remained of apparent relevance, so that in the conduct of the litigation their production was necessary.
The fact that there was no challenge to the solicitor’s deposition is no answer to that finding. In the absence of the production of the documents themselves, it is difficult to see what challenge, or basis to go behind it, could exist.
It is next submitted that if it is accepted that the portions of the will are relevant and the original document should be produced, it is appropriate to permit the irrelevant parts of the document to be masked and for the court to inspect the will to satisfy itself as to the appropriateness of the masking.
As Harris Scarfe Limited makes clear, the court may inspect the documents to satisfy itself that it is appropriate for those documents, in the circumstances, to be released to the parties. Indeed, it is common practice for a judge to inspect documents in order to determine whether, for example, they are relevant or subject to a valid claim for legal professional privilege.
Whilst it was clearly put to the primary judge that it was open to her to inspect the document itself and to confirm that what has been disclosed by the affidavit sufficiently or properly discloses the relevant part of the will, neither the will nor a proposed redacted version of the will were provided to her Honour. It is therefore difficult now for the appellants to submit that her Honour erred in not following that course.
Further, whilst it was open to her Honour to have inspected the will herself and called for its production for that purpose, it cannot be said that she was obliged to do so given the findings as to its apparent relevance. It is worth repeating that one person’s view of the relevance of parts of the documents, including a judge’s, may not be the same as others. This is particularly so in this case, where the property and maintenance proceedings are clearly complex, are at an early stage, and where a judge hearing an interlocutory issue may not be as well-attuned to the issues as the parties themselves. It was an entirely appropriate course for her Honour to decline to undertake that course at that stage of the proceedings.
Finally, her Honour clearly found at [41] that having regard to the restrictions on the use of documents produced under compulsion, the confidential and sensitive nature of the documents was not such as to prevent their production. That finding was clearly open to her Honour on the evidence.
This ground of appeal is not made out.
Ground Two
2.The learned primary judge erred in dismissing the objections to the subpoenas (in whole or in part) in respect of each category of the subpoena, in that:
2. 1the learned primary judge erred in considering that the interests of confidentially and sensitivity in the particular case were met by the operation of the Harman obligation (judgment [41]) and the injunction issued under s 121 of the Family Law Act 1975 (Cth) in that:
2.1.1the regime does not prevent disclosure to the husband;
2.1.2vis-à-vis the world at large, there are acknowledged limits to the efficacy of the regime and its enforceability (cf. Burmingham & Cod [2007] FamCA 2224;
2.2the learned primary judge erred in failing to find that having regard to the portions of the will that had been disclosed, there was insufficient forensic purpose for disclosure to override the appellants’ legitimate concerns respecting confidentiality and privacy.
In order to deal with the appellants’ concerns about the production of the documents her Honour made the following order:
(3) Each party is restrained and an injunction is granted restraining them from providing any information or copies of any documents obtained from the subpoenas to any person other than their legal representatives and any person assisting the legal representatives as experts in these proceedings.
Her Honour made this order because she was satisfied that this injunction would overcome the appellants’ concerns as to the possible disclosure of their documents. The injunction is wider than that provided by s 121 of the Act and by the implied undertaking not to use documents produced under subpoena other than for their use in the matter in which the subpoena was issued.
The appellants submit the injunction inadequately protected their interests. They submitted that this, the incomplete protection of their privacy afforded by s 121 and the implied undertaking were sufficient grounds for refusing access to the documents.
There are a number of restrictions upon the use of documents obtained pursuant to a subpoena. Firstly, s 121 of the Act provides relevantly:
(1)A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a)a party to the proceedings;
(b)a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c)a witness in the proceedings;
is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
(2)A person who, except as permitted by the applicable Rules of Court, publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means (otherwise than by the display of a notice in the premises of the court), a list of proceedings under this Act, identified by reference to the names of the parties to the proceedings, that are to be dealt with by a court is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
….
(5) An offence against this section is an indictable offence.
….
(9)The preceding provisions of this section do not apply to or in relation to:
(a)the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings; or
(b)the communication of any pleading, transcript of evidence or other document to:
(i)a body that is responsible for disciplining members of the legal profession in a State or Territory; or
(ii)persons concerned in disciplinary proceedings against a member of the legal profession of a State or Territory, being proceedings before a body that is responsible for disciplining members of the legal profession in that State or Territory; or
(c)the communication, to a body that grants assistance by way of legal aid, of any pleading, transcript of evidence or other document for the purpose of facilitating the making of a decision as to whether assistance by way of legal aid should be granted, continued or provided in a particular case; or
(d)the publishing of a notice or report in pursuance of the direction of a court; or
(da)the publication by the court of lists of proceedings under this Act, identified by reference to the names of the parties, that are to be dealt with by the court; or
(e)the publishing of any publication bona fide intended primarily for use by the members of any profession, being:
(i) a separate volume or part of a series of law reports; or
(ii) any other publication of a technical character; or
(f)the publication or other dissemination of an account of proceedings or of any part of proceedings:
(i)to a person who is a member of a profession, in connection with the practice by that person of that profession or in the course of any form of professional training in which that person is involved; or
(ia)to an individual who is a party to any proceedings under this Act, in connection with the conduct of those proceedings; or
(ii)to a person who is a student, in connection with the studies of that person; or
(g)publication of accounts of proceedings, where those accounts have been approved by the court.
….
Secondly, r 15.27 of the Family Law Rules 2004 (Cth) provides:
(1) This Division applies to a subpoena for production.
(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.
Thirdly, there is an implied undertaking as to the use of documents produced under compulsion. This flows from the decision of Harman v Secretary of State for the Home Department [1983] 1 AC 280 which was described by the High Court in Hearne v Street (2008) 235 CLR 125 at 154 as being (footnotes omitted):
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.
Finally, as her Honour identified, in appropriate cases the court may grant an injunction further restricting the use of the material. Indeed, her Honour made such an injunction in this case.
As is correctly submitted by the appellants, s 121, r 15.27 and the implied undertaking have limited reach. It is also true that the possibility of contempt proceedings may not be sufficient to prevent disclosure. The contents of the documents could be disclosed carelessly or indiscreetly. No doubt that is why her Honour issued the injunction.
It is true that none of these safeguards, or the injunction, prevent disclosure to the husband. It is also true that the court cannot guarantee that there would be no possibility of information leaking into the public domain. It follows, the appellants submit, that the only possibility of their privacy being guaranteed is for the documents not to be produced.
There is, however, a necessary compromise between the rights of justice of litigants and the rights of a stranger. The law has developed, as best it can, various means to protect the privacy of the stranger’s information. Courts frequently deal with cases involving highly confidential or commercially sensitive material. In appropriate cases, extra steps may be taken. Commonly, these include restricting access to lawyers only or to persons who have signed specific undertakings as to confidentiality, and limiting the copying of documents and their removal from the court’s premises. The injunction made by her Honour is an example of the orders that may be made.
As is apparent from her Honour’s consideration of s 121, r 15.27, the implied undertaking and her making of the injunction, her Honour was well aware of the desirability in this case of the court doing what it can to preserve the confidentiality of the appellants’ information and documents, and weighed that against the genuine forensic interest of the husband in obtaining any information about the wife’s interest in her late father’s estate. In doing so, her Honour acted entirely in accordance with well-established principles, and her Honour’s findings cannot be said to be clearly wrong.
It would be a rare case indeed when documents relevant to issues in proceedings were entirely protected from production because of concerns as to the effect of possible dissemination. As noted earlier, the court is capable of drafting stringent protections for such information. Ultimately, the court must effect a compromise between the rights of litigants and strangers to the litigation, as discussed earlier. This her Honour did.
We are not satisfied that her Honour has erred in the exercise of her discretion, and this ground does not succeed.
Ground Three
3.The learned primary judge erred in dismissing the objections to the subpoenas (in whole or in part) in respect of categories 2 – 4 in that, on the evidence, there was no sufficient basis for the conclusion that the subpoenas would reasonably likely add to the admissible evidence in the case.
It is submitted that the documents sought in paragraph 2 of the subpoenas were not relevant, did not exist and that the terms of the paragraph were vague and ambiguous.
Obviously, the financial position of an estate is relevant to the dispositions that were made under the will and whether they can be fulfilled. Again, it was the submission of the appellants that the affidavit of the solicitor rendered the production of the documents irrelevant. That submission has already been dealt with.
To the extent the documents do not exist, then, of course, they cannot be produced.
We consider that the terms of this request for production identify, clearly enough, the documents of which production is sought. It refers to any documents “that set out the assets and liabilities”, as opposed to documents that merely refer to an asset or liability.
As to paragraph 3 of the subpoenas, the evidence was that no grant of probate had been made. It is unnecessary to consider this further.
The objection to paragraph 4 of the subpoenas was not pressed before us.
This ground does not succeed.
Ground Four
4.The learned primary judge erred in dismissing the objections to the subpoenas (in whole or in part) in respect of category 5 in that:
4.1while it is true that privilege can be claimed upon production (cf. judgment [51], [52]), a category which is manifestly directed at privileged documents is an abuse and/or oppressive;
4.2 the question of (asserted) delay in the winding up of the estate was not an issue of independent relevance in the proceedings (cf. judgment [56]);
4. 3 the category was so wide as to be oppressive and/or is unclear in its breadth (cf. judgment [56]).
It was made clear to the primary judge that the husband was not seeking production of any documents that were subject to legal professional privilege. Notwithstanding, the appellants submitted that a request for production that directs itself to material which, prima facie, is likely to be privileged is oppressive. We do not consider that necessarily to be a correct statement of principle, but in any event, the documents sought extend beyond privileged documents and the request is not oppressive on this ground.
Her Honour said of this paragraph at [56]:
I do not consider that the breadth of this is so wide as to make the request oppressive. This is particularly so bearing in mind the potential size of the estate and the considerable delay since July 2009 in obtaining probate or the lack of information concerning the winding up of this potentially large estate.
Contrary to the submissions of the appellants, the delay, if any, in winding up the estate could have relevance to the issues in these proceedings in which the wife asserts that she has received no benefit from her father’s estate. We do not consider that the reference to “documents in relation to the winding up or delay in winding up” of the estate is vague or uncertain, or would cause the recipient to be in doubt as to what to produce. The request clearly refers to just those two matters, and not generally to the administration of the estate.
We see no error in the approach of the primary judge to this paragraph of the subpoenas and this ground also fails.
Conclusion
We have determined that there has been no error in principle by the primary judge and we are satisfied that the decision has not occasioned any substantial injustice to the appellants. The appellants have therefore not established that leave should be granted, and it will be refused.
At the commencement of the hearing of the appeal, without opposition, the appellants were given leave to rely on further evidence being an updating affidavit from the solicitor who swore the original affidavit relied on by them before the primary judge. An interim order was then made for the placing of that affidavit in a sealed envelope to be opened only upon order of a judge.
As no such order was sought or obtained in relation to the affidavit originally filed and which this affidavit corrects, it is difficult to see why this part of the evidence should continue to be kept in a sealed envelope. The interim order made on 13 November 2014 will be discharged.
Costs
Counsel for the appellants accepted that in the event the application for leave was refused or the appeal dismissed that costs should follow the event.
That, in all the circumstances, is the appropriate order to make.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland & Aldridge JJ) delivered on 20 February 2015.
Legal Associate:
Date: 20 February 2015
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