SCVG & Estate of KLD (Deceased)

[2021] FamCA 424

FAMILY COURT OF AUSTRALIA

SCVG & Estate of KLD (Deceased) [2021] FamCA 424  

File number(s):

SYC 4380 of 2008

Judgment of:

GILL J

Date of judgment:

23 June 2021

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – subpoenas – objection to two subpoenas – relevance of first subpoena – where asserted relevance lacks foundation in pleadings  – oppressive generality of first subpoena – first subpoena discharged – second subpoena relevant and not oppressive

Legislation:

Family Law Rules 2004 (Cth) r 15.23

Cases cited:

Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905

R v Barton [1981] 2 NSWLR 414

UnitingCare - Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476

Number of paragraphs:

34

Date of hearing:

12 February 2021

Place:

Canberra

Solicitor for the Applicant:

Self-representing

Counsel for the Respondent:

Mr Stenhouse

Solicitor for the Respondent:

Macphillamy’s

ORDERS

SYC 4380 of 2008

BETWEEN:

SCVG

Applicant

AND:

ESTATE OF KLD

Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	23 JUNE 2021

THE COURT ORDERS THAT:

1.The subpoena filed by the applicant on 5 February 2018 and addressed to Christopher Macphillamy of Macphillamy Lawyers is discharged.

2.The applicant is permitted to file a subpoena directed to Christopher Macphillamy of Macphillamy Lawyers in accordance with items 1 and 2 of the schedule of the subpoena rejected for filing on or about 21 December 2020.  Items 1 and 2 are as follows:

1. A copy of this subpoena;

2. All correspondence including emails between Mr Macphillamy or his firm and Mr SCVG during the period 1 July to 14 September 2017.

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 SCVG & Estate of KLD has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

GILL J:

1. Mr SCVG has sought the issue of two subpoenas requiring the production of documents by Mr Christopher Macphillamy, the solicitor for the respondent in the proceedings.  The first of those subpoenas was successfully filed.  The respondent seeks that it be struck out.  The second subpoena was rejected for filing on or about 21 December 2020, but its issue is pressed before me by Mr SCVG.  It too is resisted by the respondent, seeking that filing continue to be refused, or alternatively, that it be struck out.

2. The first subpoena is pursued in the context of proceedings where, in general terms, Mr SCVG seeks the setting aside of various judgments of the Family Court of Australia and Federal Circuit Court of Australia on the basis that they were procured by fraud on the part of the now deceased Ms KLD.  Ms KLD’s Estate has now taken over the action.

3. The rejected subpoena is pursued in relation to proceedings where Mr SCVG seeks that a judgment entered into in his absence, dismissing his application for review of various decisions by Registrars, be set aside on the basis that Mr Macphillamy was aware of Mr SCVG’s inability to attend at court, but denied knowing of such and that he caused counsel appearing for the respondent in that matter to misrepresent the position to the court in a manner causal of the dismissal of Mr SCVG’s action.

   The first subpoena 

4. A number of the actions pursued by Mr SCVG are predicated upon the proposition that Ms KLD obtained various judgments by fraud, in that she misrepresented her financial circumstances in various sworn documents, relying upon those falsehoods to secure outcomes adverse to Mr SCVG.

5. In pursuit of those claims, the first subpoena of 5 February 2018 bears the following schedule: 

   1.A copy of this subpoena  

   2.All files and records since 1/1/2000 related to Mr Macphillamy’s work for the KLD family regarding the purchase, sale or structuring of transactions or business matters relating to their livestock farms, QQ Pty Ltd and N Pty Ltd businesses and the will of the late brother of the respondent Mr U (in which the respondent is a stakeholder in the form of either a company shareholder, beneficiary or trustee)  

6. The relevance put forward as a justification for the subpoena is to implicate Mr Macphillamy in the alleged fraud. The allegation made by Mr SCVG is that Mr Macphillamy knew that the contents of sworn documents filed for Ms KLD, as to her financial circumstances, were materially wrong.  Although the fraud alleged by Mr SCVG is by Ms KLD, Mr SCVG identifies that the material is being pursued in relation to the knowledge of Mr Macphillamy.

7. Mr SCVG submits that he pursues this factual conclusion in respect of Mr Macphillamy to answer any requirement that might arise as to exceptionality as a necessary ingredient when seeking to set aside a judgment on the basis of perjury. 

8. Mr SCVG asserts that if there is such a requirement of exceptionality, it will be met by establishing the participation of Mr Macphillamy in the perjury alleged to have been committed by the late Ms KLD. 

9. It is argued by Mr SCVG that active participation by an officer of the court will make the fraud upon the court more effective, as it will grant an added credibility to an attempt to deceive the court.  By analogy Mr SCVG argued that if a solicitor were to bribe a juror, the success of such a scheme is enhanced by the fact that the briber is a solicitor.

10. Mr SCVG submitted that his proposed use of the documents would be to cross-examine Mr Macphillamy as to his knowledge of the worth of the assets referred to by Ms KLD in her sworn documents, and to ensure that Mr Macphillamy was held accountable for assisting Ms KLD to perpetrate a number of “big” frauds.

11. For the respondent it is countered that seeking production of documents relating to Mr Macphillamy’s work for the KLD family since 2000 cannot be relevant to the financial statement in issue, which was filed in 2015. 

12. It was argued that the relevance threshold is not met due to the generality of the phrase “[a]ll files and records” of the various business matters over an extended time frame and has not been established specifically in regard to the “will of the late brother of the respondent Mr U”.  

13. The respondent further complained that the reference to the livestock farms, QQ Pty Ltd and N Pty Ltd businesses and the will of the late brother of the respondent Mr U lacked relevance to the 2015 financial statement sworn by Ms KLD.

14. Further, Mr Macphillamy’s conduct is said to be irrelevant to the perjury as it is Ms KLD’s conduct, not any act of Mr Macphillamy, that goes to establishing any fraud upon the court.

15. In response to the issue of relevance, Mr SCVG alleged that the documents are sought to demonstrate that Mr Macphillamy had engaged in such extensive work for Ms KLD that he had knowledge that the financial statement was fraudulent.

16. If the relevance threshold is satisfied by Mr SCVG, the respondent raises a suite of other objections to the subpoena. 

17. First, it is argued that the terms and scope of the subpoena are oppressive. This submission was put on several bases, including that the phrasing “matters related to” is oppressive as it requires Mr Macphillamy to make a judgment as to the material caught by the subpoena. It is complained that the schedule lacks adequate particularity. The respondent also alleged that the subpoena is too widely drawn to satisfy any legitimate forensic purpose and amounts to a mere “fishing expedition”.[1]  In this vein, the respondent referred to Coleman J’s observation in UnitingCare - Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476 at [72] that

    [t]here 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.

    1           [1] See, eg, UnitingCare — Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476, [68]–[71].

18. Further it is complained that the scope of the subpoena amounts to discovery, and if it is discovery then it is an abuse of the use of a subpoena, as explained by McClelland J in Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905.

19. Second, the subpoena apparently captures documents relating to work conducted on behalf of members of the KLD family who are not party to the litigation.  The respondent pointed to the interest of third parties in not having their affairs drawn into litigation and noted that the right to privacy of third parties must be balanced against the public interest in litigants being able to make out their claim.[2]  According to the respondent, the breadth of the subpoena places an impermissible burden on the interests of the third parties to this litigation.

    [2] R v Barton [1981] 2 NSWLR 414, 419.

20. Third, the respondent identified two minor procedural issues related to the subpoena.  First, the payment of $20 in conduct money did not comply with the Family Law Rules 2004 (Cth) r 15.23, which mandates a minimum payment of $25. Second, it was alleged that no permission was granted by the Registrar to file the subpoena. However, it was acknowledged that as the subpoena was filed it may be assumed that the requisite permission was given.

21. This matter may be answered on a number of bases.

22. The first is that these are, unusually, proceedings that are governed by the pleadings made and filed by the parties.  Those pleadings frame the factual issues and scope of the trial of this matter.  They have been the subject of multiple attempts to replead, which in turn have been the subject of careful scrutiny and multiple judgments.  The process of attempted repleading has now been brought to an end, and the pleadings may be considered to have crystallised into their final form.

23. That final form contains no factual matter pleaded in relation to the conduct or state of knowledge of Mr Macphillamy.  The complaint of the respondent that Mr Macphillamy’s state of mind is irrelevant is well made, as it may be observed that the basis put forth to establish relevance is not a matter supported by any pleading.  Accordingly, in terms of the factual scope of the trial as established by the pleadings, the subpoena is irrelevant.

24. Even if this irrelevance was to be disregarded, the subpoena is so broadly cast as to necessarily mean the capture of irrelevant documents outside the scope of the purpose articulated by Mr SCVG.  He does not articulate a case that renders all of the business activities of the KLD family relevant, yet, to the extent that Mr Macphillamy is involved, that is what he seeks.

25. This wide casting may also fairly be characterised as oppressive, trespassing heavily upon persons who are not the parties to the litigation.  Further, the wide casting has the appearance of fishing.

26. For any of these reasons, the subpoena should be discharged.

    The second subpoena 

27. Mr SCVG’s contention is that a direct misrepresentation was made to the court on the instructions of Mr Macphillamy regarding Mr SCVG’s non-attendance at court.  He asserts that he sent correspondence to Mr Macphillamy that renders the representation to the court untrue. 

28. The second subpoena bears the following schedule: 

    1.A copy of this subpoena  

    2.All correspondence including emails between Mr Macphillamy or his firm and Mr SCVG during the period 1 July to 14 September 2017.  

    3.Mr Macphillamy’s Affidavit sworn 30 November 2017 filed in these proceedings.  

29. This subpoena is said to be justified on the basis that the documents are required to forestall an argument that Mr Macphillamy did not receive the specified correspondence.  Although the respondent's pleadings accept the receipt of some documents from Mr SCVG, the pleadings do not identify which.  Mr SCVG contends that the documents will refute Mr Macphillamy’s claim that he was unaware that Mr SCVG could not attend court on 14 September 2017.  Mr SCVG alleges that Mr Macphillamy knowingly caused Mr Stenhouse to make a misrepresentation to the court regarding Mr SCVG’s absence which caused Mr SCVG’s applications to be dismissed and costs awarded against him. 

30. Although it was made clear that production of the documents was sought to prove that Mr Macphillamy is in possession of the emails, objection to the subpoena was pressed on the basis that Mr SCVG already has the documents. 

31. Mr SCVG agreed there was no need to produce an affidavit that has already been filed in the proceedings.  Schedule 3 of the subpoena was accordingly withdrawn.

32. On the case as plead by Mr SCVG, the awareness of Mr Macphillamy of the documents sent to him by Mr SCVG, and the identification of those particular documents is a matter germane to the case pleaded by Mr SCVG.  What is sought are not the emails held by Mr SCVG, but those received by Mr Macphillamy.

33. The subpoena is directed to matters relevant to the trial of the matter.  The scope of the subpoena is narrow, and could not be fairly described as oppressive.  

34. The subpoena should be accepted for filing and issued.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       23 June 2021