Shvets & Shvets - [2025] FedCFamC1F 120

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Shvets & Shvets [2025] FedCFamC1F 120

File number: BRC 9946 of 2023

Judgment of: CAREW J

Date of judgment: 28 February 2025

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – Where there is an objection to a subpoena – Where the subpoena sought production of documents over an eight year period – Where compliance would require review of 765,487 emails – Where documents needed to be reviewed against the scope of the subpoena and whether there was an entitlement to claim legal professional privilege – Where it is determined that the scope of the subpoena, as drafted, was burdensome and oppressive – Where the applicant has paid retrieval costs – Where the subpoena is set aside and the applicant ordered to pay further costs

Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.05, 6.33, 6.34, 6.35, Sch 3

Cases cited: Titan Enterprises (Qld) Pty Ltd v Cross [2016] FCA 1275

Number of paragraphs: 28

Date of last submission/s: 17 February 2025

Date of hearing: Determined in Chambers at the request of the parties

Place: Brisbane

Solicitor for the Applicant: Phillips Family Law

Solicitor for the First and Third Respondents: McInnes Wilson Lawyers

Solicitor for the Second, Fourth and Fifth Respondents: Mills Oakley

Solicitor for the subpoenaed party E Pty Ltd: HWL Ebsworth Lawyers
ORDER

BRC 9946 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR SHVETS

Applicant

AND:
MS SHVETS

First Respondent

MR MOONEY

Second Respondent

MS SHVETS AND MR MOONEY ATF THE B TRUST (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

CAREW J

DATE OF ORDER:

28 FEBRUARY 2025

THE COURT ORDERS THAT:
1.The subpoena to E Pty Ltd issued at the request of the applicant on 10 January 2024 is set aside.
2.The applicant is to pay E Pty Ltd the fixed sum of $15,000 within 21 days.

NOTATIONS:
A.There is no Court by the name “Federal Circuit and Family Court of Australia”. This Court was formerly known as the Family Court of Australia and is now known as the Federal Circuit and Family Court of Australia (Division 1).
B.The design of the seal affixed to this Order issued by the Federal Circuit and Family Court of Australia (Division 1) was determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FedCFamC1F 120
Decision Date: 28 February 2025

CaseChat Overview and Summary

In the matter of Shvets & Shvets, the Federal Circuit and Family Court of Australia was required to consider the validity and enforceability of a subpoena issued by the husband, which sought the production of a substantial volume of documents from E Pty Ltd, a company previously associated with the wife and her father. The subpoena, issued on 10 January 2024, demanded the production of all emails sent to, received by, or forwarded by or to specific individuals over an eight-year period, relating to the sale of shares in E Pty Ltd and related financial transactions. The court was tasked with determining whether the subpoena was overly burdensome and oppressive, and if so, whether it should be set aside. E Pty Ltd argued that complying with the subpoena would necessitate reviewing approximately 765,487 emails at an estimated cost of $2,557,683 and that it would also need to check for legal professional privilege over any of the documents.

The court found that the scope of the subpoena, as drafted, was indeed burdensome and oppressive. The extensive number of emails and the associated costs made compliance impractical. Despite prolonged negotiations between the parties, no agreement was reached to reduce the scope of the subpoena, and E Pty Ltd was not provided with sufficient conduct money to comply. Consequently, the court set aside the subpoena. Furthermore, the court ordered the husband to pay E Pty Ltd the fixed sum of $15,000 within 21 days, reflecting the costs incurred due to the subpoena.

In summary, the Federal Circuit and Family Court of Australia held that the subpoena was overly burdensome and oppressive, and it was set aside. The husband was ordered to compensate E Pty Ltd for the costs incurred as a result of the subpoena. This decision underscores the importance of ensuring that subpoenas are not disproportionately burdensome and that parties have the opportunity to negotiate scope and costs effectively.

Orders

Orders of the court

1. The subpoena to E Pty Ltd issued at the request of the applicant on 10 January 2024 is set aside.

2. The applicant is to pay E Pty Ltd the fixed sum of $15,000 within 21 days.

NOTATIONS:

A. There is no Court by the name “Federal Circuit and Family Court of Australia”. This Court was formerly known as the Family Court of Australia and is now known as the Federal Circuit and Family Court of Australia (Division 1).

B. The design of the seal affixed to this Order issued by the Federal Circuit and Family Court of Australia (Division 1) was determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For reasons which will be explained, the subpoena will be set aside, and the husband will be ordered to pay E Pty Ltd $15,000 within 21 days. RELEVANT BACKGROUND E Pty Ltd is a company previously owned by the wife and her father, Mr Mooney, as trustees for the B Trust, a discretionary trust established by the wife and her father in mid-2016. The wife was the principal of the Trust and sole beneficiary. The wife and her father were directors of E Pty Ltd. The shares in E Pty Ltd were sold in 2019 for over $59,000,000 with payment made in two tranches in 2019 and 2021. Any interest the wife and her father had in E Pty Ltd ceased in August 2019. The subpoena issued on 10 January 2024 at the request of the husband sought the production of documents over an eight year period from 1 January 2016. The operative paragraphs of the subpoena require the production of documents described as follows: (2)For the period from 1 January 2016, all email (including copies of any attachments to any email) sent to, received by or forwarded by or to, any email account (whether such account was individually named; named on the basis of a role within the organisation; and/or a shared/group account) in the name of, or held by:-(a) [Mr Shvets];(b) [Ms Shvets];(c) [Mr Mooney]; and(d) [Ms Mooney];in relation to the sale of the shares in [E Pty Ltd], the sale of the Series A Units in [E] Bidco LP, the receipt of money from those sales and the trust distributions to and from [the B Trust] and [D Trust] from those sale proceeds (where those sale proceeds were paid in or around August 2019 and August/September 2021).(3) For the period from 1 January 2016, all email (including copies of any attachments to any email) sent to, received by or forwarded by or to, any email account (whether such account was individually named; named on the basis of a role within the organisation; and/or a shared/group account) in the name of, or held by [Mr Shvets]. E Pty Ltd informed the husband that compliance with the subpoena would require, among other things, the review of some 765,487 emails at an estimated cost of $2,557,683 (that is, approximately $3.34 per document) and invited the husband to reduce the scope of his subpoena by limiting the date period and identifying key search terms. E Pty Ltd contended that a review would not only be necessary to identify if each document came within the scope of the subpoena but also to check whether E Pty Ltd was entitled to claim legal professional privilege over any of the documents. Over a period of some nine months, the husband and E Pty Ltd (through their respective lawyers), communicated in an attempt to reduce the scope of the subpoena. As agreement could not be reached to reduce the scope of the subpoena and E Pty Ltd was not provided with sufficient conduct money to comply with the subpoena in either its original form or in any reduced scope, E Pty Ltd sought and were granted an extension of time to file a notice of objection to the subpoena. Notwithstanding the absence of an agreement to reduce the scope of the subpoena, E Pty Ltd produced documents based on limitations to the scope of paragraph 2 of the subpoena previously discussed in correspondence.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	BRC 9946 of 2023
Judgment of:	CAREW J
Date of judgment:	28 February 2025
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – Where there is an objection to a subpoena – Where the subpoena sought production of documents over an eight year period – Where compliance would require review of 765,487 emails – Where documents needed to be reviewed against the scope of the subpoena and whether there was an entitlement to claim legal professional privilege – Where it is determined that the scope of the subpoena, as drafted, was burdensome and oppressive – Where the applicant has paid retrieval costs – Where the subpoena is set aside and the applicant ordered to pay further costs
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.05, 6.33, 6.34, 6.35, Sch 3
Cases cited:	Titan Enterprises (Qld) Pty Ltd v Cross [2016] FCA 1275
Number of paragraphs:	28
Date of last submission/s:	17 February 2025
Date of hearing:	Determined in Chambers at the request of the parties
Place:	Brisbane
Solicitor for the Applicant:	Phillips Family Law
Solicitor for the First and Third Respondents:	McInnes Wilson Lawyers
Solicitor for the Second, Fourth and Fifth Respondents:	Mills Oakley
Solicitor for the subpoenaed party E Pty Ltd:	HWL Ebsworth Lawyers

BRC 9946 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR SHVETS Applicant
AND:	MS SHVETS First Respondent MR MOONEY Second Respondent MS SHVETS AND MR MOONEY ATF THE B TRUST (and others named in the Schedule) Third Respondent

ORDER MADE BY:	CAREW J
DATE OF ORDER:	28 FEBRUARY 2025