Salim & Hakim (No. 3)
[2021] FamCA 520
•16 July 2021
FAMILY COURT OF AUSTRALIA
Salim & Hakim (No. 3) [2021] FamCA 520
File number(s): PAC 5392 of 2020 Judgment of: FOSTER J Date of judgment: 16 July 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – SUBPOENA OBJECTION – review of Registrar’s orders dismissing objections to subpoena by the wife and third party objector in relation to a subpoena to produce filed by the husband directed to Department of Home Affairs – where discussion of relevant principles – where subpoena objection upheld – where subpoena struck out. Legislation: Family Law Act 1975 (Cth) s 79 Cases cited: Salim & Hakim [2021] FamCA 245
Salim & Hakim (No. 2) [2021] FamCA 495
Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905
Number of paragraphs: 18 Date of last submission/s: 8 June 2021 Date of hearing: 18 June 2021 Place: Parramatta Counsel for the Applicant: Mr Givney Solicitor for the Applicant: Maclarens Lawyers Counsel for the First Respondent: Mr Schonell SC Solicitor for the First Respondent: York Law Family Law specialists Solicitor for the Second Respondent: There was no appearance by or for the Second Respondent nor her solicitors Zahr Partners Solicitor for the Objector: There was no appearance by or for the Objector nor his solicitors One Group Legal ORDERS
PAC 5392 of 2020 BETWEEN: MS SALIM
Applicant
AND: MR HAKIM
First Respondent
MS NOOR
Second Respondent
MR SOBHY
Objector
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
16 JULY 2021
THE COURT ORDERS THAT:
1.Orders 1, 2, 3 and 4 made on 11 June 2021 be set aside.
2.The Subpoena issued by the husband to the Department of Home Affairs be struck out.
3.Any documents produced pursuant to the Subpoena be returned to the Department forthwith.
4.The question of costs of and incidental to the present application be reserved to agreement or final hearing.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Salim & Hakim has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:
The application for determination is an application to review the order of a registrar dismissing objections to a subpoena issued on 4 May 2021 by the husband directed to the Department of Home Affairs, seeking travel records for the wife and a Mr Sobhy.
The application arises in the context of spirited litigation between the primary applicant wife seeking property adjustment orders and the respondent husband.
An interlocutory judgment and orders were made on 9 July 2021. This judgment assumes familiarity with those Reasons: Salim & Hakim (No. 2) [2021] FamCA 495 and Reasons for judgment delivered in relation to an earlier Review of a Subpoena Objection ruling: Salim & Hakim [2021] FamCA 245.
The present subpoena seeks, in relation to the wife and Mr Sobhy departure and arrival records for the period 1 January 2018 to the date of the subpoena and passenger entry and exit cards for the same period.
Both the wife and Mr Sobhy seek to have the subpoena struck out.
All parties filed written submissions.
Apparent relevance: Subpoena
In Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905 McClelland DCJ set out a useful analysis of the well settled relevant legal principles (footnotes omitted):
26.The power of the Court to issue a subpoena is set out in Part 15.3 of the Family Law Rules 2004 (Cth) (“the Rules”). Equally, the Court has power to set aside a subpoena so issued: Hatton v Attorney General of the Commonwealth of Australia & Ors (2000) FLC 93 038 (“Hatton”).
27.The relevant stages of subpoenaing a third party to produce documents to the Court were described in Hatton at [38], by reference to National Employers’ Mutual General Association v Waind and Hill [1978] 1 NSWLR 372, as being a three step process:
The first [step] is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise…This application by the applicant companies concerns the first step referred to in Hatton (supra)….
28.Rule 15.26 relevantly enables a person or entity named in the subpoena to apply for an order that the subpoena be set aside in whole or in part (r 15.26(1)(a)).
29.Further, r 15.26(1)(c) enables a person or entity to which a subpoena is addressed to seek “to be paid for any loss or expense relating to … the production of a document in compliance with the subpoena”.
30.A subpoena must only be used for a legitimate forensic purpose. In considering this issue, it is unnecessary for the party issuing the subpoena to establish actual relevance. However, the party issuing the subpoena must “demonstrate [that] the documents have an apparent relevance to the issue or issues before the Court and in respect of which the subpoena was filed”. (emphasis added)
31.In that context, it is not enough for a party seeking to uphold a subpoena to show that the documents might lead to “a train of inquiry” which might assist his or her case. This is to be distinguished from the process of discovery where such a motive may be permissible.
32.While it is the case that the bar for establishing relevance is not high, the party seeking to rely upon the subpoena must nonetheless establish that it is “on the cards” that the documents would bear upon and have relevance to the issues in the substantive proceedings.
33.Expressed in the reverse, it is not legitimate to issue a subpoena on the basis of “an outside chance” that something useful might turn up in the documents.
34.A subpoena may also be at risk of being set aside if its terms are so wide that “…it imposes an onerous task on a stranger [to the litigation] to collect and produce documents many of which have no relevance to the litigation”.
35.In terms of “fishing”, it is not legitimate for a party to issue a subpoena with a view to determining whether the issuing party has a case at all.
36.In Unitingcare – Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476, Coleman J undertook a useful analysis of the relevant authorities and noted at 85,857:
There is a material distinction between seeking production of documents which, if they exist, can be readily identified and produced in circumstances where such documents may be admissible in evidence, and seeking the production of unspecified documents in the hope that, when produced, they may reveal something capable of being admissible in evidence. The former course is permissible according to general law, and… the Act. The latter offends both.
37.In that same context, in Ryder & Lee [2009] FamCA 531, Burr J adopted the following passage from the decision of Gray J in Andrew Garrett Wine Resorts v National Australia Bank Ltd (No. 6) (2005) 92 SASR 419 wherein his Honour said at 428:
It is not enough for the party issuing the subpoena to raise a speculative possibility that the documents sought would assist the resolution of the dispute. The party supporting the subpoena must demonstrate that the documents sought in the subpoena are of real relevance to the issues in the case. It must be more than an outside chance that something useful might turn up in the documents.
38.In summary, it is not enough for a party issuing the subpoena to raise a “speculative possibility” that the documents sought would assist the resolution of the dispute. While the bar is not high, the party supporting the subpoena must demonstrate that the document(s) sought in the subpoena are of an “apparent relevance” to the issues in the proceedings. It must be more than “an outside chance” that something useful might turn up in the documents.
39.To avoid being set aside as merely “fishing”, or as being oppressive, a subpoena must specify with reasonable particularity the documents which are required to be produced.
It is thus incumbent on the husband to demonstrate “apparent relevance”.
The husband contends that NAB documents produced on subpoena reveal that Mr Sobhy has provided not insignificant funds to the wife since separation. At first the wife did not disclose this circumstance but ultimately acknowledged the funds advanced by him.
The husband contends as to his belief that the wife and Mr Sobhy are “in a relationship” by reason of funds lent to the wife and travel and meetings together. He asserts that the documents sought may show an aspect of this relationship in that the wife and Mr Sobhy travelled overseas together. He simply contends that they are in a de facto relationship.
It is to be noted that the wife’s application for interim spousal maintenance has recently been dismissed: Salim & Hakim (No. 2) [2021] FamCA 495 by reason of her obtaining employment.
The husband contends that Mr Sobhy as objector, has no knowledge of the issues of relevance that may arise in the primary proceedings between the husband and wife. Indeed, Mr Sobhy sought particulars from the husband by letter dated 25 May 2021. No response was received. However, it was contended on behalf of Mr Sobhy that the husband holds suspicion and raises allegation that he and the wife are in a relationship so as to publicly shame he and the wife within the Country E community.
The wife asserts that the husband has maintained a course of conduct seeking to shame her within the community. Her receipt of funds from Mr Sobhy is now known. She, however, denies that she is in a de facto relationship with him.
The husband’s contentions are based on suspicion and belief. He adduces no evidence to suggest that the wife and Mr Sobhy are cohabitating so as to bring their relationship within the realm of relevance in the context of property only proceedings, or that he presents as an ongoing financial resource to the wife.
The fact or otherwise of overseas travel does nothing to establish cohabitation for the purposes of s 79 proceedings. As said by McClelland DCJ in Baumann and Ors & Rushbrooke and Anor (supra):
… it is not enough for a party seeking to uphold a subpoena to show that the documents might lead to “a train of inquiry” which might assist his or her case. This is to be distinguished from the process of discovery where such a motive may be permissible.
32.While it is the case that the bar for establishing relevance is not high, the party seeking to rely upon the subpoena must nonetheless establish that it is “on the cards” that the documents would bear upon and have relevance to the issues in the substantive proceedings.
33.Expressed in the reverse, it is not legitimate to issue a subpoena on the basis of “an outside chance” that something useful might turn up in the documents.
Travel documents do nothing to establish a de facto relationship between the wife and Mr Sobhy. It may be contended that he presents as a financial resource to the wife at final trial or it may be contended that they are cohabiting for the purposes of s 75(2) consideration. The present subpoena does nothing to assist those issues. There is no “apparent relevance”.
The subpoena will be struck out. Orders will be made accordingly.
Costs of and incidental to the present determination are reserved to agreement or final hearing when the financial circumstances of the parties are better known.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster. Associate:
Dated: 16 July 2021
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