Sampey and Sampey and Anor
[2016] FamCA 343
•11 April 2016
FAMILY COURT OF AUSTRALIA
| SAMPEY & SAMPEY AND ANOR | [2016] FamCA 343 |
| FAMILY LAW – PRACTICE AND PROCEDURE – REVIEW OF REGISTRAR’S DECISION– OBJECTION TO SUBPOENA – Where certain objections made by the respondents to subpoenas issued by the wife were upheld by the Registrar – Where the wife seeks a review of the Registrar’s orders – Where the respondents dispute the relevance of the documents sought to the proceedings between the husband and the wife – Where the respondents assert that compliance with the subpoena would be oppressive and may reveal confidential information – Where the wife asserts the documents sought are necessary to ascertain the true financial position of the husband – Where the Court finds that the documents may be relevant to the proceedings |
| |
| Andrew Garrett Wine Resorts & Anor v National Australia Bank Limited (No. 6) (2005) 92 SASR 419 | |
| APPLICANT: | Ms Sampey |
| 1st RESPONDENT: | C Pty Ltd |
| 2nd RESPONDENT: | Ms F |
| FILE NUMBER: | SYC | 87 | of | 2013 |
| DATE DELIVERED: | 11 April 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 10 September 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr White SC |
| SOLICITOR FOR THE APPLICANT: | Michael Conley Lawyers |
| SOLICITOR FOR THE RESPONDENTS: | Bransgroves Lawyers |
| COUNSEL FOR THE RESPONDENTS: | Mr Peadon |
Orders
IT IS ORDERED
Orders made by the Registrar on 14 January 2015 are set aside.
The objection made to the subpoena dated 17 November 2014 to Westpac Banking Corp Ltd. is dismissed. The parties are to have leave to inspect those documents upon production.
In relation to the subpoena issued to Ms F on 17 November 2014 the objection made to production of documents called for in paragraphs 2 and 3 is dismissed.
The objection by C Pty Ltd is dismissed. All documents not produced and which are sought in the subpoena dated 17 December 2014 are to be produced forthwith and is thereafter are made available for inspection by the parties.
The wife has leave to photocopy documents produced under subpoena by C Pty Ltd, BB Pty Limited, Y Pty Limited, Ms F, Sampey Properties Pty Limited (under administration), D Pty Limited (“D”), National Australia Bank, Commonwealth Bank of Australia, American Express Australia Limited, CC Hospital and to the two subpoenas issued to Westpac Banking Corporation UPON CONDITION that all copies remain under the control of the wife’s legal representatives and are returned to the court within 60 days of the Final Orders being made or the determination of any appeal which is filed within the time prescribed, thereafter.
Should any other party require photocopy access to the documents produced on subpoena an application may be made to Justice Le Poer Trench in chambers.
Costs of each party reserved for argument by written submission to be made within 28 days of final property and/or maintenance orders being made in the proceeding.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sampey & Sampey and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 87 of 2013
| Ms Sampey |
Applicant
And
C Pty Ltd
1st Respondent
And
| Ms F |
2nd Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Before the Court is an Application in a Case filed on 15 January 2015 by Ms Sampey (“the wife”) seeking that Orders 8 – 11 made by Registrar George on 14 January 2015 be reviewed and discharged.
Orders 8 – 11 of the Registrar’s Orders provide:
8. The objection in relation to paragraph 1 of the subpoena to Westpac is upheld apart from any debit cards in the name of [Mr Sampey]. I note that it is not agreed by the parties or otherwise here today, whether [B Pty Limited] employs only [Mr Sampey] or also employs other people.
9. The Notice of Objection in relation to [Ms F] is dismissed in relation to paragraph 1 and upheld in relation to paragraph 2 and 3.
10. The objection to inspection of documents produced in answer to paragraphs 3 to 6 of the subpoena to [C Pty Ltd] is upheld.
11. The directions made at paragraphs 7 to 10 above stayed for 7 days to enable the relevant parties to file a review if they wish to do so.
The wife seeks that the parts of the subpoena, noted in the above order of the Registrar as being “dismissed”, be required by court order to be complied with and to the extent that the objections raised by the recipients and entities/persons affected by the subpoena be dismissed.
The subject subpoena are those issued on the request of the wife to C Pty Ltd (“C”) (filed on 17 November 2014), Ms F (“Ms F”) (filed on 17 November 2014) and Westpac Banking Corporation (“Westpac”) (filed on 12 December 2014).
As will be seen from the whole of the relevant orders of the Registrar made 14 January 2015, some of the portions of the subject subpoena were upheld against the objection of some of those affected by the issue of the subpoena. Although the objectors are represented in this hearing there is no order sought other than a dismissal of the application by the wife to review those orders of the Registrar’s set out above. To state the obvious, the wife does not seek to review all the orders made by the Registrar on 14 January 2015. That discrete review therefore is all the court is ask to consider.
C has been joined as a party to the substantive property settlement proceedings between the wife and Mr Sampey (“the husband”). The wife seeks to join Ms F, the husband’s partner (de-facto), to the proceedings but she is not a party at this stage.
Documents have been produced to the Court pursuant to the subpoenas issued to Westpac and C. No documents have been produced by Ms F.
The wife, in her application in a case, also seeks further orders that the parties have leave to photocopy the documents produced pursuant to subpoenas issued to C, BB Pty Limited, Y Pty Limited, Ms F, Sampey Properties Pty Limited (under administration), D Pty Limited (“D”), National Australia Bank, Commonwealth Bank of Australia, American Express Australia Limited, CC Hospital and to the two subpoenas issued to Westpac Banking Corporation.
The wife seeks no orders as to costs.
C and Ms F (“the respondents”) seek that the wife’s application be dismissed and an order for their costs.
BACKGROUND
The wife was born in 1970 and is currently 45 years old. The husband was born in 1964 and is currently 51 years old. The husband is an undischarged bankrupt who works as a health professional. He practices in Sydney and E Town. The wife has part time employment as an aged care worker.
The husband and the wife commenced cohabitation upon their marriage in 1994 and separated on 7 December 2012 (18 years of cohabitation). During the marriage the husband practiced as a health professional. He was self-employed at the date of the marriage and continued to be throughout the marriage and until July 2013. The wife was not in paid employment from after the birth of the first of their three children, for whom she was the primary carer. The husband and the wife currently share care of their children pursuant to parenting orders entered into by them in October 2013.
On 10 January 2013 the wife commenced proceedings in the Family Court of Australia.
Orders for spousal maintenance to be paid to the wife were made on 20 February 2013, and those orders were varied on 22 February 2013 and 22 April 2013. The wife says the husband has failed, either in whole or in part, to comply with those orders.
On 1 July 2013, the husband entered into a service agreement with B Pty Limited (“B”). His service agreement with B provided for an annual salary of $595,000. The husband was a director of B from 25 September 2006, when the company was registered, until 22 May 2013. His current partner, Ms F, was appointed as a director on 1 January 2008 and is currently the sole director of this company. The sole shareholder of B is D Pty Limited (“D”). The husband had previously been a director of D but Ms F was appointed sole director on 9 October 2012 and has been since that date. The shareholders of D are the husband’s friend and brother, Mr O and Mr P Sampey respectively.
The husband was declared bankrupt, on his own petition, on 22 July 2013 and, as a condition of his bankruptcy, has paid a weekly sum of $3,444 to the trustee in bankruptcy. He has continued his employment with B to the present day.
Prior to his bankruptcy, the husband was also a director of C. Ms F was appointed as the director of C shortly prior to the husband’s bankruptcy and remains acting in this capacity.
On 27 November 2013, the husband filed an application in a case seeking to discharge the spouse maintenance order. He relied, inter alia, upon the fact that he was an undischarged bankrupt. The application was heard by Justice Rees on 19 February 2014. The wife was self-represented and filed no material in relation to the application. The only evidence before the Court of the husband’s capacity to pay was his Financial Statement where he deposed to an income of $11,442 per week and personal expenditure, including a weekly payment to the trustee in bankruptcy, of $11,871 per week. It was found that the husband had no capacity to pay the spousal maintenance order and the order was discharged.
On 28 November 2014, the wife filed an application in a case seeking orders for spousal maintenance, child support and the joinder of B and C Pty Ltd (“C”). Justice Rees outlined, at paragraph 21 of the Judgement delivered in relation to this application on 11 December 2014, that “contrary to the evidence given by the husband in February 2014, the husband can pay the modest amount of spousal maintenance which the wife seeks.” Orders were made for payment by the husband of specific expenses for the wife. The proceedings as to the joinder of B and C were adjourned to be heard by Justice Stevenson in January 2015.
The wife’s Amended Application in a Case, which included an application for the joinder of B and C, was heard by Justice Stevenson on 15 January 2015. It was the wife’s case that B and D are alter egos of the husband. In support of her case, the wife had relied upon bank statements from Westpac accounts operated by B and D, summarised by Justice Stevenson at paragraphs 15 and 16 of the judgement delivered on 19 February 2015 as follows:
The wife contended that B and D are alter egos of the husband. In support of this proposition the wife relied upon voluminous bank statements which were exhibited to her affidavit of 27 November 2014. These statements show the following, inter alia:
·Payments to [Q Finance], for flights and [E Town] and Sydney airport expenses, [M School], Hummer Limousines and the husband’s trustee in bankruptcy ($6,088) and to the husband’s then solicitors from a Westpac account operated by [D] ($28,000).
·Payments for flights and airport expenses, rent, to the husband’s then solicitors, “withdrawal cash [Suburb R]” in amounts including $60,000 and $17,950, domestic expenses for example Coles at [Suburb R], Luna Park, Woolworths at [Suburb S] from a Westpac Bank account operated by [B].
·Payments to people including “[Mr T]”, “[Ms U]”, “[Mr V]”, from a Westpac Bank account operated by [B].
The husband is a registered proprietor of a property [W Street, Suburb R] which he occupied until about August 2014. The husband claimed that this property was damaged in a truck collision and rendered unsafe, hence he moved into the [Suburb G] home leased in the name of [Ms F]. The payments and withdrawals to which reference is made above from accounts conducted by [D] and [B] occurred at times when the husband was a resident of [Suburb R].
B and C were joined as respondents to the proceedings. The orders of Stevenson J of 19 February 2015 also provided for the payment spousal maintenance to the wife amounting to $1,659 per week and the payment of the lease instalments for her motor vehicle.
B was placed into voluntary liquidation on 6 May 2015.
THE SUBPOENAS ISSUED BY THE WIFE
Subpoena issued to Westpac
On 17 November 2014 the wife issued a subpoena to Westpac (the first Westpac subpoena) of which paragraph 1 called for:
Originals and/or copies of all documents, notes, bank statements, cheques and/or summaries of all transactions recording or evidencing any interest for the following persons or entities held either solely or jointly in any accounts from 5 July 2014 to date in respect of the following persons or entities:
(i)[The husband] of last known address [W Street, Suburb R] NSW 2010, born … 1964;
(ii)[Ms F] of last known address [W Street, Suburb R] NSW 2010, born … 1974;
(iii)Sampey Properties Pty Ltd ABN … ATF DD Trust;
(iv)EE Pty Ltd ACN … ATF FF Trust;
(v)[C];
(vi)[B]
(vii)Y Pty Ltd ABN …;
(viii)B Limited- (Organisation Number …);
(ix)DD Superannuation Fund;
(x)D Pty Limited CAN …; and
(xi)GG Pty Limited.
On 12 December 2014, the wife issued a further subpoena to Westpac (“the second subpoena”) (S47). Paragraph 1 of the schedule to that subpoena called for:
Originals and/or copies of all documents which record all debit cards and the names of each person or persons operating each card linked to the Westpac Account in the name of [B] account number … for the period 1 July 2012 to date.
Documents were produced to the Court by Westpac in reply to the first subpoena and were inspected by the wife’s legal representatives. The affidavit of the wife’s solicitor, Ms HH, sworn on 10 December 2014 annexed schedules prepared by her and another solicitor which purport to set out an overview of the funds received into certain bank accounts which the wife asserts were funds received for the benefit of the husband. The accounts included Westpac bank accounts in the name of B and D. It was asserted by the wife’s legal representative that the bank statements provided under the first Westpac subpoena indicated that the husband received monies for his benefit significantly in excess of the amount of his asserted income.
The orders of Registrar George that are sought to be dismissed by the wife relate to the objection filed by the respondents regarding paragraph 1 of the second subpoena to Westpac. Registrar George upheld that objection, apart from documents recording the issue of any debit cards in the name of the husband. It was contended by the wife that the identity of other persons using the debit cards linked to the B Westpac account is relevant to the question of control and alter egos. At no time, the wife submitted, has B produced any evidence that persons other than the husband and Ms F have access to the account.
It was submitted by the respondents that the issue of debit cards to any other person apart from the husband is not of apparent relevance to the proceedings and in particular, to the wife’s contentions that B is the alter ego of the husband.
The wife further submitted that it was difficult to see how the Registrar’s order could be given effect. The wife asserted that it was uncertain as to whether, in relation to documents produced by Westpac that contained the names of various persons including the husband, the wife not be permitted to inspect the document at all or whether B would be permitted to redact the names of third parties. The wife seeks that unrestricted access be provided to the documents called for in paragraph 1 of the subpoena.
Subpoena issued to Ms F
The subpoena issued on behalf of the wife to Ms F, filed on 17 November 2014, requested, at paragraphs 1 – 3:
1. Originals and/or copies of the Individual tax Returns filed on behalf of [Ms F] and Notices of Assessment issued to [Ms F] for the following years:
1.1.Financial year ended 30 June 2012.
1.2.Financial year ended 30 June 2013.
1.3.Financial year ended 30 June 2014.
2. Originals and/or copies of all bank statements, cheques and or summaries of all transactions recording or evidencing any interest held by [Ms F] (also known as …) either solely or jointly with any other person or entity in any bank or other financial institution for the period 1 July 2012 to date.
3. Originals and/or copies of all applications for loans made to any bank or other financial institution by [Ms F] (also known as …) either solely or jointly with any other person or entity from 1 July 2012 to date.
On 2 December 2014 an objection was filed on behalf of Ms F on the grounds of relevance and oppression.
The orders of Registrar George dismissed the objection in relation to paragraph 1 but upheld the objection in relation to paragraphs 2 and 3.
It was submitted for the wife that as there was no issue that Ms F and the husband live together in a de facto relationship, the documents sought are relevant to the financial circumstances of the husband. The fact that Ms F is not a party to the proceedings does not, according to the wife, affect the relevance of the documents.
Counsel for Ms F disputed the relevance of the documents and referred to the necessity for the documents to have a “sufficient apparent connection” with the issues in the proceeding. Counsel asserted that Ms F’s financial position is unlikely to assist the wife in her case that B is the husband’s alter ego. Counsel also submitted that there is a real risk of a large volume of irrelevant material being produced. It was also submitted by counsel for Ms F that as she is not yet a party to the proceedings, it is burdensome and oppressive to require production of the documents requested due to their intrusive nature and the absence of any direct relevance to the principal issue in the proceedings.
It was submitted by the wife, in response, that there has been no evidence filed by Ms F that the documents sought are burdensome or oppressive as to scope or costs and the fact that Ms F is not formally a party does not affect the relevance of the documents. It was contended for the wife, in relation to the relevance of the documents, that it was her case that B (at least until it was placed into voluntary liquidation in May 2015) and C are the alter egos of the husband and that the husband and his current partner, Ms F, operate and control the bank accounts in the names of these entities.
Subpoena issued to C
The subpoena issued to C by the wife, filed on 17 December 2014, called for the following documents:
1. Originals and/or copies of all documents relating to the employment of [the husband], of last known address [W Street, Suburb R] NSW …, including but not limited to:
1.1. All contracts, deeds and agreements;
1.2. All correspondence; and
1.3. All other written records of employment including but not limited to original contracts, service agreements and all documents carrying the original terms of employment for the period 1 July 2012 to date.
2. Originals and/or copies of all pay slips and records of payment made to [the husband] in respect of services provided by him for the period 1 July 2012 to date.
3. Originals and/or copies of the Financial Statements for [C Pty Ltd], including detailed profit and loss accounts, balance sheets, and notes to the accounts for the following years:
3.1. Financial year ended 30 June 2012.
3.2 Financial year ended 30 June 2014.
4. Originals and/or copies of the MYOB or equivalent management accounts for [C Pty Ltd] for the following periods:
4.1 Financial year ended 30 June 2014.
4.2 From 1 July 2014 to date.
5. Originals and/or copies of the Company Tax Returns for [C Pty Ltd] for the following years:
5.1. Financial year ended 30 June 2011.
5.2. Financial year ended 30 June 2012.
5.3. Financial year ended 30 June 2014.
6. Originals and/or copies of all lists of assets and liabilities of [C Pty Ltd] prepared between 1 August 2014 to date.
7. Originals and/or copies of accounting legers for any loan account which records advances made by [C Pty Ltd] to [the husband], or advances made by [the husband] to [C Pty Ltd], for the period 1 July 2009 to date.
8. Originals and/or copies of any loan agreements relating to advances made by [C Pty Ltd] to [the husband], or advances made by [the husband] to [C Pty Ltd], for the period 1 July 2009 to date, and in respect of any loan existing between [C Pty Ltd] and [the husband] as at 30 June 2013.
9. Originals and/or copies of any minutes and/or loan agreements relating to any loans between [C Pty Ltd] and [the husband] which existed at the following dates:
9.1 30 June 2013.
9.2 30 June 2014.
On 2 December 2014, a notice of objection was filed on behalf of C on the grounds of relevance and oppression.
Registrar George upheld the objections to the production of the documents requested in paragraphs 3-6.
It was submitted for C that the wife’s allegation regarding the husband’s “alter ego” was principally focussed on B. Counsel for C referred to a comment to this effect by Senior Counsel for the wife in interim proceedings (regarding spousal maintenance) which came before her Honour Rees J on 11 December 2014 in support of this submission.
The wife submitted, in reply, that any submission on her behalf regarding B being the husband’s “alter ego” did not exclude the possibility of C also being an alter ego of the husband. Counsel for the wife outlined that the submissions made before Justice Rees, even if they were principally focused on B, must be seen in context of the wife’s spousal maintenance application that was before her Honour which sought an order that payments be made from the bank accounts held by B.
It was also asserted that the documents requested from C in paragraphs 3-6 of the subpoena are at most of tangential relevance and that compliance with the items not objected to (being paragraphs 1, 2, 7, 8 and 9 above) should disclose any potentially relevant information, rendering the other documents requested in paragraphs 4-6 of no additional value. The wife contended that any submission by C that the documents not objected to would disclose any potentially information is speculation and amounts to a concession that the items requested in paragraphs 4-6 have relevance.
Counsel for C also asserted that the obligation to produce materials of that kind constituted an unwarranted intrusion into C’s confidential corporate information that may capture “a potentially large volume of materials at no little expense for none or little gain”.
Counsel for the wife submitted that there has been no evidence filed by C to substantiate its assertions that production of the documents would be oppressive or burdensome.
The evidence
The wife
The wife relies upon the following evidence in support of this application:
a)Affidavit of the wife sworn 4 May 2015, paragraphs 8, 9 and 16;
b)Affidavit of the wife sworn 27 November 2014, paragraphs 9, 13, 62-65, 68-69, 82, 85, 141-150, 170-173, and exhibits 1, 13, 18, 19, 21, 56, 57 and 64; and
c)Affidavit of Ms HH sworn 10 December 2014, paragraphs 4 – 16, annexures B to H.
Affidavit of the wife sworn 4 May 2015
At paragraph 8 of her affidavit, the wife deposed that the husband and Ms F have been in a relationship since December 2012.
The wife deposed, at paragraph 9:
From 1996 to 2006 the Husband established a number of corporate entities and became a director and shareholder of each of these companies. The Husband operated these entities throughout the course of the relationship and following separation. The main entities that are still in existence and that I contend are the alter ego of the Husband are as follows:
9.1. Sampey Properties Pty Ltd (“SPPL”)
9.2. Sampey International Pty Ltd (“SI”)
9.3. D Pty Ltd (“D”)
9.4. B Pty Ltd (“B Australia”)
9.5. B Pty Ltd (“B”)
9.6. C Pty Ltd (“C”)
9.7. II Pty Ltd (“II”)
Annexure E to the wife’s affidavit is an ASIC company extract of D which shows that the company was registered on 30 March 2006 and was previously owned by Sampey Properties Pty Ltd. The current shareholders are Mr O and the husband’s brother. The husband was a director of D from its registration until 20 May 2009, when Mr O was appointed. Mr O remained acting in this capacity until 9 October 2012. Ms F was appointed as the sole director on that date.
Affidavit of the wife sworn 27 November 2014
The wife deposed to the establishment by the husband, between 1996- 2006, of a number of corporate entities. The wife outlined that the husband was a director and shareholder of each of these entities and operated them throughout the course of the relationship and following separation. At paragraph 9 of her affidavit, the wife sets out a list of entities which she contended are the alter egos of the husband. This list includes D, B (Australia) and C. The other entities named by the wife were Sampey Properties Pty Ltd and B Pty Ltd.
At paragraph 3 of this affidavit, the wife deposed that on or about 19 December 2012 she became aware that the husband was having an affair with Ms F. She outlined that it was her understanding that their relationship commenced before 2012 and that they are still in a relationship.
At paragraphs 62-63, the wife deposed that documents produced by Westpac in July 2014, pursuant to a subpoena issued by her, showed that the husband was receiving money from D and continued to use Westpac accounts for D for his own purposes. Exhibit 18 to the wife’s affidavit are copies of the Westpac Bank Statements in the name of D, account number … for the period of 10 October 2012 to 10 April 2014. The bank statements show recurrent deposits through internet online banking variously named “…”, “…”, “…”, “…”, “…”, “…” dating up to 10 April 2014. “…” and “…” correspond with the initials of the husband’s name. Also contained in Exhibit 18 is a schedule of prepared by the wife’s solicitors setting out the transactions from 19 July 2013 to 10 April 2014 which are contended by the wife to evidence that the husband is still receiving money from and continues to use the account. A further schedule of transactions including the initials “…” or “…” or “…” from 3 February 2014 to 10 April 2014 is set out by the wife at paragraph 62 of her affidavits. At paragraph 63, the wife deposed:
There was no activity in this account until 10 April 2013. There are transactions of the same nature and for the same amounts and same transfer description without the letters … from 19 July 2013 to date that are not included in the above schedule but which I contend apply to the Husband.
The wife contended, at paragraph 64 of her affidavit, that another Westpac Bank account (account number …) in the name of D was also being used by the husband for his day to day living and other expenses. She asserted that the husband’s income from his consulting rooms, his air tickets for travels to work to E Town, his airport car parking, deposits and withdrawals, Q Pty Ltd lease payments for his two motor vehicles, the children’s school fees, payments to his previous lawyers, debits from the hospital from which the husband operates, and restaurant and hotel costs are being paid into or out of this account. Exhibit 19 to the wife’s affidavit is a copy of the statements for the D Westpac Business One Account, account number …, from 12 October 2012 to 9 May 2014 and a schedule of the payments prepared by her solicitors setting out payments and transactions that the wife contended were made in relation to the husband from 21 February 2013 to 6 June 2014. The statements show payments made, after 1 July 2013 and up to 6 June 2014, including payments for “DEBIT CARD PURCHASE [E TOWN] AIRPORT PARKING”, “PAYMENT BY AUTHORITY TO THE [M SCHOOL]”, “PAYMENT BY AUTHORITY TO [Q] AUSTRALIA”, “DEBIT CARD PURCHASE … HOTEL [JJ TOWN]”, “WITHDRAWAL-INTERNET ONLINE BANKING…PAYMENT WATTS MCCRAY”, “WITHDRAWAL- INTERNET ONLINE BANKING…Loan [Mr Sampey]”, “DEPOSIT [MR SAMPEY] [D PTY LTD]”, “WITHDRAWAL- INTERNET ONLINE BANKING…FNDS TFR GS TRANSFER”, “WITHDRAWAL- INTERNET ONLINE BANKING…FNDS TFR GS SAVINGS”, and “DEPOSIT QUAY CU [Mr Sampey]”.
At paragraph 68 of her affidavit, the wife also alleged that the husband is utilising the Westpac bank account in the name of B, account number …, for his own use. The wife sets out a schedule of transactions, from 27 March 2012 – 7 May 2014, which she purported to be payments received from the husband’s consulting rooms, withdrawals by him, payments made to his previous lawyers, and purchases at E Town airport and KK Hospital. The wife also deposed that the account statements evidence payments made by the husband for landscaping works he undertook at his Suburb R property in November 2013. Exhibit 21 is a copy of the Westpac bank account statement in the name of B, account number …, for the period 1 March 2013 – 29 May 2014. The transactions on the statement include “DEBIT CARD PURCHASE [E TOWN] AIRPORT PARKING”, “WITHDRAWAL- INTERNET ONLINE BANKING…FNDS TFR … SAVINGS”, “DEBIT CARD PURCHASE [KK PRIVATE HO] [SUBURB LL]”, “ PAYMENT BY AUTHORITY TO THE [M School]”, “PAYMENT BY AUTHORITY TO [Q] AUSTRALIA, “DEBIT CARD PURCHASE … LIMOUSINES”, “WITHDRAWAL INTERNET ONLINE BANKING…PAYMENT WATTS MCCRAY” and “WITHDRAWAL- INTERNET ONLINE BANKING…Loan [Mr Sampey]”.
At paragraph 82 of her affidavit, the wife outlined that from October 2009 – 1 July 2013 the husband was self-employed. She deposed that he entered into a service agreement with B from 1 July 2013 earning $11,442 per week as a health professional. Exhibit 28 are copies of the husband’s individual tax returns for the 2009 -2013 financial years, showing that his income was $8,115 in the 2009 financial year, $307,413 in the 2010 financial year, $768,355 in the 2011 financial year, $688,900 in the 2012 financial year and $331,869 in the 2013 financial year.
The wife reiterated, at paragraph 85 of her affidavit, that it was her contention that B, D, C and Sampey Properties Pty Ltd are alter egos of the husband.
At paragraphs 141-150 of her affidavit, the wife sets out her understanding of the structure of D and B and the husband’s involvement in same. In relation to D, the wife deposed that D was originally a company owned by Sampey Properties Pty Ltd prior to the transfer of the shareholding to Mr P Sampey and Mr O. Exhibit 56 is a copy of an ASIC search for D which shows that the husband was a director of the company from 30 March 2006 until 20 May 2009, when Mr O was appointed as a director. Mr O held this position until 9 October 2012 when he resigned, and Ms F was simultaneously appointed. Ms F remains the sole director of D.
At paragraph 143 of her affidavit, the wife contended that D, together with Sampey Properties Pty Ltd and B, are making mortgage repayments on behalf of the husband. At paragraph 145, the wife asserted that the Westpac Bank account statements in the name of D evidences the husband depositing money to this account and withdrawing money from this account.
Exhibit 57 of the wife’s affidavit is an ASIC extract for B. It shows that the company was registered on 25 September 2006, and that the husband and Mr O were appointed directors of B on this date. Ms F was appointed a director of the company on 1 January 2008. Mr O ceased to be a director of B on 30 April 2008 and the husband on 22 May 2013. Ms F is the sole director of this company. The sole shareholder is D, which holds one ordinary share in B.
The wife set out her evidence in relation to C at paragraphs 170- 173 of her affidavit and contended that C is the alter ego of the husband. Exhibit 64 is an ASIC Extract for C showing that the company was registered on 4 October 2006 and the husband was appointed a director on this same date. He ceased being a director on 1 June 2009. Ms F was appointed as a director on 20 May 2009 and held this position until 9 October 2012, when the husband was re-appointed as a director until 25 October 2012. Ms F was appointed on this date and remains the sole director of the company. The sole shareholder of C, holding one ordinary share, is D.
Affidavit of Ms HH sworn 10 December 2014
At paragraph 5 of her affidavit, Ms HH, the wife’s solicitor, deposed that a Notice to Produce was issued to the husband on 3 December 2014. The Notice, annexed to the affidavit, request that the husband produce to the Court on 11 December 2014 the following documents:
1. Documents which record the payment of the salary paid to you by [B Pty Limited] for the period 1 July 2013 to date.
2. All bank statements with respect to any bank accounts held in your name or any bank account in which you have a beneficial interest or any account into which your salary is paid to you by [B] for the period 1 July 2013 to date.
3. All documents recording the receipt of any bonus or other income paid to you in addition to your salary paid by [B] or any third party for the period 1 July 2013 to date.
The response from the husband, dated 9 December 2014, stated:
1. Have none.
2. Have Newcastle Permanent Account. Has $5 or so would have to go Newcastle to get it.
3. Nil Bonus, will be hit with financial penalty as spend all my time in court.
Ms HH deposes, at paragraph 7 of her affidavit, that this response “further demonstrates the husband’s unwillingness to provide full and frank disclosure as to his true income”.
Ms HH stated, at paragraph 8, that the husband’s affidavit evidence in the proceedings before Justice Rees on 19 February 2014 was contrary to the documents produced under subpoena with respect to his income. Ms HH deposed that the bank statements provided pursuant to subpoenas issued to Westpac on 17 November 2014 indicated that the husband received monies for his benefit significantly in excess of the amount stated in his service agreement with B and his financial statement. A table in Ms HH’s affidavit purports to set out amounts that were credited to the Westpac account in the name of B, account number …, which it is alleged were received in relation to the husband’s income as a health professional. The table indicates a total of $706,554.12 received into the account from 1 July 2013 to 30 June 2014 and a total of $253,712.29 from the period 1 July 2014 to 22 November 2014.
Ms HH deposed that the bank statements produced by Westpac for account number … in the name of D, annexed to her affidavit, show the amount of $1,107,824.75 was deposited from fees generated by the husband’s work as a health professional from 1 July 2013 to 30 June 2014, and the amount of $784,352.64 was deposited from 1 July 2014 to 22 November 2014. At paragraph 12 of her affidavit, Ms HH deposed:
The Husband received not less than $1,814,378.87 in income as evidence (sic) above for the period 1 July 2013 to 30 June 2014. For the period 1 July 2014 to date the Husband has received income of not less than $946,664.93.
Ms HH also deposed that the bank statements produced by Westpac for account number … in the name of D, annexed to her affidavit, show that for the periods 13 January 2014 to 30 June 2014 the amount of $503,000 was deposited into account in relation to deposits records as “Savings” or “Funds TFR GLS” and “Deposit Internet Online Parking Funds TFR Non-Voting 13.01.2014”. The schedule set out in Ms HH’s affidavit also sets out a total of $221,500 received into this account between 1 July 2014 and 19 November 2014 recorded as “Savings” or “Funds FR …”.
Additionally, Ms HH deposed that the bank statements for the St George Complete Freedom account in the name of “[Mr Sampey]” indicate that the husband, D, and B have been making repayments due pursuant to St George Loans that are secured over the husband’s properties at Suburb R, MM Street and NN Town, despite the contention of the husband that he was unable to make the repayments. Further, Ms HH asserts, the Westpac Business One Account in the name of Sampey Properties Pty Ltd, account number …, shows that the husband was paying M School fees in July 2013 despite his contentions in his financial statement that these were being paid by Mr O and his brother. The husband was also paying water rates and council rates for the property at Suburb R in 2013 through this account despite him swearing in his financial statement that he had not been paying for these expenses. The original bank statements for the St George account do not appear to have been annexed to the affidavit filed with the Court.
The husband
The husband relied on the following evidence
a)Affidavit of the husband sworn 8 January 2015 at paragraphs 9, 11, 13, 21, 62-65, 68-69, 85, 141-150, 170-173;
b)Affidavit of the husband sworn 7 January 2015 at paragraphs 4-16; and
c)Affidavit of the husband sworn 14 January 2015.
Affidavit of the husband sworn 8 January 2015
In his affidavit sworn 8 January 2015, which appears to be in response to a previous affidavit of the wife. The husband sets out the following.
The husband said that Sampey properties was set up as a management company, and is not an alter ego. He said the directors are Mr O, Mr P Sampey and Ms F. The husband stated he was a director for a short time “when the company needed an introduction into surgical implants”. He says that he has not been a director since his bankruptcy. The husband states that he has no interest in the company and is not, nor has ever been a shareholder.
The husband deposed that D Pty Ltd is his employer through a contract employer B Pty Ltd. The husband is not the only employee. Income generated from any consulting, operating, sales and services go to D’s bank account, and that income is not solely generated by the husband.
The husband says that Ms F and he have known one another for 15 years, and started dating after the parties separated.
The husband stated that he has provided full and frank disclosure of his financial position. He asserts that the Trustee in Bankruptcy is a reputable firm.
The husband sets out in paragraph 62 that “…” as an abbreviation in the book keeping for the company stands for “general ledger savings”, as does the abbreviation “…”.
The husband denied that unnamed bank accounts are his. The husband stated that he has no ability to transfer money, but that he had a company credit card available to him for company expenses. He is asked to refund expenses that are deemed personal, which is effected by being deducted from his net salary.
The husband sets out that D will pay for repairs on the Suburb R property. He stated that he understands that B Pty Ltd acts as the management company, and that the accountant pays all the relevant accounts then bills the relevant company. He stated that any expenses he has are deducted from his net salary.
The husband stated that he has no access to the NAB accounts.
The husband asserted that he has no ownership of “the companies” and that he has a service agreement with B.
The husband denies that he has ever operated a “total body scanning businesses [sic] premises”.
He deposed that “entities non related” had been making payments on loans, and that he did not have the resources to do so. He said further that the entities were making the repayments as they have a financial interest.
The husband denied that money was deposited to him [from company accounts, it is assumed]. The abbreviation, he says, stands for General Savings Ledger.
He stated that D’s financial structure and ownership is a matter for it.
The husband agreed that “Reappointment was error”. He denies that he is related to “this entity” and that it pre-dates his bankruptcy and current employment.
Affidavit of the husband sworn 7 January 2015
In his affidavit sworn 7 January 2015, the husband set out the following.
At paragraph 4, the husband deposed that the Financial Statement and service agreement (dates not provided) are true and correct, but that the service agreement allowed for adjustment. He stated he was only working part-time and the contract was being reviewed due to poor performance.
He stated at paragraph 5 that he had only been able to afford limited advice as he was self-represented.
The husband stated that any bank accounts in his name were disclosed in his Financial Statement of 27 November 2013.
He said the Financial Statement of 27 November 2013 set out his financial situation, which was unchanged at the time of deposing the affidavit.
The husband denied receiving income. He stated that he declared all income on his tax return and the account to which the funds in question were transferred was a company account.
The husband deposed that he had asked the book keeper for D what the “Funds Transfer GLS” was and the husband says it is an abbreviation for “funds transfer post to general ledger savings”.
The husband denied that D and B are alter egos of his. He deposed that he has no interest in the companies and has never been a shareholder. He asserts he is not a director. He said that when refinance was sought from St George Building Society for properties in trust, he made a loan agreement with the directors of D, by which the company would make loan repayments, and would receive equity in the properties in return. He stated that this loan agreement was accepted by the trustee in bankruptcy.
The husband stated that the rates [to the properties] were paid by Sampey Properties and were put against a shareholders loan. He said that Sampey Properties had gone into administration.
Affidavit of the husband sworn 14 January 2015
In his affidavit sworn 14 January 2015, the husband set out the following.
The husband asserted at paragraph 16 that he was not (at the time of swearing) a director of any company.
At paragraph 17, the husband stated that before bankruptcy, he had shares in Sampey Properties Pty Ltd and EE Pty Ltd, and that any dividends from those companies were directed to the Trustee in Bankruptcy.
He denied that there are any companies which functioned as his “alter ego” at paragraph 18.
The husband stated at paragraph 22 that from 1 July 2013 to the date of swearing, he had been employed by B Pty Ltd as a health professional. He received a gross income of $11,422 per week. His agreement with B was exclusive.
The law
The respondents object to the inspection and/or production of documents on the grounds of relevance and oppression.
It was also contended in written submissions for the respondents that compliance with the subpoenas would constitute an unwarranted intrusion on private rights.
One of the fundamental questions for the Court in these proceedings is whether the documents sought pursuant to the subpoenas have an apparent relevance to the issues in the proceedings currently on foot. His Honour Moffitt P in National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 stated at 384 that the “only legitimate purpose of requiring production, and permitting the inspection, of a stranger’s documents can be to add, in the end, to the relevant evidence in the case”
It is well established law that the issuing party, in this case the wife, bears the onus of proving the relevance of the documents sought by the subpoena to the issues in the matter. In the decision of Andrew Garrett Wine Resorts & Anor v National Australia Bank Limited (No. 6) (2005) 92 SASR 419 at paragraph 37, Gray J. stated:
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.
It was contended by the respondents that the subpoenas issued by the wife are not relevant to the principal issue in the substantive proceedings, which the respondents alleged was whether or not B is the alter ego of the husband. The wife contended that her allegations relating to B did not discount the possibility of an entity such as C also being the husband’s alter ego, and that the financial position of Ms F is directly relevant to that of the husband, particularly given her involvement in entities previously controlled by the husband, as outlined above.
In Mulley & Marney v Manifold (1959) 103 CLR 341 at 345 Menzies J described the test for ascertaining the relevance of documents as:
Only a document which relates in some way to a matter in issue is discoverable, but it is sufficient if it could, or would lead to a train of inquiry which would, either advance a party’s own case or damage that of the adversary.
In White & Tulloch v White (1995) FLC 92-640 (“White & Tulloch”) the Full Court described the test, at 82,464, as whether those documents have a “sufficient apparent connection to justify their production or inspection.”
Moore JR in In the marriage of Sharpe & Dalton; Twigg (other party) (1990) FLC 92-167, citing the comments of Cantor J in R. v. Barton & Ors (1981) 2 N.S.W.L.R. 414 at 419, stated that, in relation to documents where the relevance is unclear:
…there is no simple guideline to follow. What is required, as I have stated, is a balancing of the competing and generally conflicting interests of the party to the proceedings and the stranger to the proceedings.
The Court will consider the nature of the documents specified and will determine as best it can the issues likely to arise. If it appears an issue may arise in litigation to which the documents may relate than [sic] I believe the right of the litigant should prevail over the right of the witness. Unless it appears that an issue may arise to which the documents may relate then the right of the witness will prevail.
It will be noted I do not postulate that the issue must arise in the litigation nor do I postulate that the documents must relate to an issue.
It seems to me, on this first step in relation to the subpoenaeing of documents from a stranger the Court will consider possible issues. This does not include fanciful issues. The Court should take a realistic attitude. Similarly in considering the type of documents and how they may bear upon an issue in the litigation the Court will act realistically and not require the production of documents which only would have a bearing upon an issue on an unreal, fanciful or speculative basis.
In relation to subpoenas issued to non-parties, his Honour Jordan C.J in The Commissioner for Railways v. Small (1938) 38 S.R. (N.S.W.) 564 at 573 stated:
A writ of subpoena duces tecum may be addressed to a stranger to the cause or to a party. If it be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger to the cause ought not to be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant: Lee v. Angas; Burchard v. Macfarlane; A.-G. v. Wilson; Newland v. Steer. And if a subpoena duces tecum is issued to such a person in an objectionable form, the witness may apply to the Court to have it set aside.
In White & Tulloch, the Full Court at 82,464 outlined that requiring a third party to produce documents which may ultimately be of no more than marginal relevance could constitute oppression and had the likely implication of widening the scope of the proceedings “far beyond” what is legitimate or useful:
We are also concerned about the width and effect of paras 4 and 5 of the subpoenaed documents.... Presumably the approach adopted by the trial Judge was that if documents of a third party are relevant then, subject to any recognized claim of privilege or other objection, they are obliged to be produced notwithstanding that they represent an invasion of privacy so far as a third party is concerned. But here the matter is wider than that. We do not consider that on the material before him the trial Judge was correct in extending the production of documents that far. It appears to us oppressive to Mrs Tulloch to have to disclose detailed financial records in circumstances where that may prove ultimately to be of no more than marginal relevance. It is likely to widen the scope of these proceedings far beyond what is legitimate or useful and is not in accordance with a proper practice in these matters.
Turning then to the confidentiality concerns raised by the respondents in written submissions, the Full Court in the decision of Sadek and Ors & Hall and Anor [2015] FamCAFC 23 provided a detailed outline of the restrictions governing the inspection and use of subpoena material within the Family Law Act 1975 (“the Act”), the Family Law Rules 2004 (Cth) and at common law. As outlined by the Full Court, additional safeguards may also be put in place by the Court, should this be appropriate in the circumstances. In that case, the appellants submitted that an injunction restraining each party from providing any information or copies of any documents obtained from the subpoena to any other person other than their legal representatives was inadequately protected their interests. The appeal was dismissed. I here set out the discussion of their Honours Thackray, Strickland and Aldridge JJ in full (bold emphasis added):
41. 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.....
42. 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.
43. 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] HCA 36; (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.
44. 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.
45. 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.
46. 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.
47. 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.
48. 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.
49. 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.
50. We are not satisfied that her Honour has erred in the exercise of her discretion, and this ground does not succeed.
determination
The determination of a review from the decision of a Registrar proceeds by way of hearing de novo (Rule 18.10).
Applying the principles and decisions set out above I now turn to determine what orders should be made in relation to those portions of the subpoena issued to C, Ms F and Westpac, which were objected to and where those objections were upheld by the Registrar.
The first order to be considered is order 8 made by the Registrar. I repeat that order here for convenience.
8. The objection in relation to paragraph 1 of the subpoena to Westpac is upheld apart from any debit cards in the name of [Mr Sampey]. I note that it is not agreed by the parties or otherwise here today, whether B Pty Limited employs only [Mr Sampey] or also employs other people.
Paragraph 1 of the subject subpoena called for production of: “Original and/or copies of all documents which record all debit cards and the names of each person or persons operating each card linked to the Westpac Banking Corporation Ltd Account in the name of B Pty Ltd, account number … for the period 1 July 2012 to date.”
The objection to production is “no apparent relevance”.
The evidence provided by the wife to support her case is said to raise a real issue as to the real ownership of the corporate entity B. The wife’s case is that the company is the alter ego of the husband. It is a relevant matter to establish, in property proceedings, how the assets and revenue of a company which is found to be an alter ego of a party (the husband) have been applied over a relevant period of time. If the revenue has been diverted or paid in a manner which deliberately, wantonly or negligently divests the real owner (being a relevant person or entity) of a relevant asset then that will usually be seen as a relevant matter in section 79 property and section 74 spouse maintenance contest.
The wife has provided evidence, as described herein, which relevantly connects the husband to B in a way which establishes sufficient relevance to require the production of the documents called for in the subject subpoena.
The next order of the Registrar which is the subject of review is as follows:
9. The Notice of Objection in relation to [Ms F] is dismissed in relation to paragraph 1 and upheld in relation to paragraph 2 and 3.
The objection is “no apparent relevance” and “the requirement for compliance is oppressive”.
The first part of the objection goes to the relevance of the documents sought in the subpoena. The entirety of the orders made by Registrar George on 14 January 2015 are set out earlier in these reasons. It is noted that Ms F does not object to producing the documents specified in paragraphs 4 and 5 of the subpoena. Those paragraphs required production of documents which related to the acquisition of “D” class shares by Ms F in Sampey Properties Pty Ltd.
The documents sought in paragraph 1 of the subject subpoena called for the production of copies of personal tax returns for the years ended 30 June 2012, 2013, 2014. The Registrar dismissed the objection to this paragraph. Ms F does not press to review that determination. If she had then there is no issue that she resides in a de-facto relationship with the husband and as such her personal financial circumstances would be relevant to consideration of section 79 and section 74 proceedings which are both matters requiring determination between the parties. Clearly there may have been an issue about how many years of records in this area might be relevant, however, that is not an issue before me.
The documents sought in response to paragraphs 2 and 3 of the subpoena are personal financial records of Ms F. She is the de-facto wife of the husband. The wife has informed the Court that the case she pursues will establish that the husband, a bankrupt, operates his practice through entities in which Ms F has an interest. The wife forecast her case as establishing that the husband was effectively transferring income, earned by him as a health professional, to Ms F and through that method defeats a maintenance order which the wife may seek, and that the husband has the benefit of the entirety of his income. None of this is established yet and it is strenuously denied by the husband and the balance of the respondents to the proceeding.
The wife is entitled to run her case. The documents she seeks do have apparent relevance to the case and therefore the objection on the ground or relevance is not made out.
In relation to the “oppressive” objection, no affidavit by Ms F is relied upon nor is there any other evidence to support the objection which is relied upon.
The objection is not made out and therefore is dismissed.
The next order of the Registrar which is the subject of review is as follows:
10. The objection to inspection of documents produced in answer to paragraphs 3 to 6 of the subpoena to [C Pty Ltd] is upheld.
The objection is based upon “no apparent relevance”. At the time of the hearing of the objection by the Registrar it was asserted that the wife’s focus in relation to her “alter ego” case, was said to be against the company B. However, as stated by the wife, that submission was not accurate. C is now a party to the proceeding and the wife has made it clear that her case that the company is the alter ego of the husband will be strongly pursued.
In relation to the assertion that it would be costly and burdensome for the company to comply with the subpoena, there is no evidence provided by C to support that assertion.
There is sufficient relevance between the documents sought in the subpoena and the case pursued by the wife and accordingly the objection is dismissed.
I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 11 April 2016
Associate:
Date: 11 April 2016