Suell and Suell

[2008] FamCA 968

FAMILY COURT OF AUSTRALIA

SUELL & SUELL [2008] FamCA 968

FAMILY LAW – PRACTICE AND PROCEDURE – SUBPOENAE – Department of Immigration objects to production and inspection – privilege – public interest immunity – balancing exercise – need to demonstrate a legitimate forensic purpose for seeing the documents – forensic purpose does not outweigh public interest factors – Objection upheld

Family Law Rules 2004 (Cth) r 15.26
Evidence Act 1995 (Cth) s 130

National Employer’s Mutual General Insurance Association Limited v Waind and Hill [1978] 1 NSWLR 372
The Attorney General of New South Wales v Stuart (1994) 34 NSWLR 667

APPLICANT: Ms Suell

RESPONDENT: Mr Suell

FILE NUMBER: BRC 6774 of 2007

DATE DELIVERED: 24 October 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 24 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hamwood

SOLICITOR FOR THE APPLICANT: K L King & Associates

COUNSEL FOR THE RESPONDENT: Mr North SC

SOLICITOR FOR THE RESPONDENT: Murdoch Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Ms McMillan SC

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: Williams Lawyers

Orders

1. That the objection to the subpoena by the Department of Immigration be upheld.

2. That the documents produced pursuant to subpoena be sealed in an envelope marked "By order of Murphy J on 24 October 2008 not to be opened save by order of the Court".

3. That the said envelope remain sealed on the Court file until the expiration of the appeal period in respect of the decision just made by me or the hearing and determination of any appeal from the decision just made by me whichever is the later.

4. Upon the expiration of the later of those dates, the documents be destroyed.

IT IS NOTED that publication of this judgment under the pseudonym Suell & Suell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC  6774 of   2007

MS SUELL

Applicant

And

MR SUELL

Respondent

Ex Tempore

REASONS FOR JUDGMENT

1. On behalf of the husband, a subpoena was issued to the Department of Immigration seeking the production of documents, returnable today. 

2. Mr North SC, who appears for the husband, having heard that the Department of Immigration objects to the production of those documents, does not seek to press the further production of the documents. Mr Hamwood, who appears with Mr McGregor for the wife, seeks to inspect the documents.

3. Rule 15.26 of the Family Law Rules 2004 (Cth) (‘the Rules”) provides that a named person can seek an order that the subpoena be set aside in whole or in part or object to the production of documents required by the subpoena.

4. The Rules do not descend into detail in respect of the procedure otherwise to be adopted by the Court where parties object to subpoena on the basis of relevantly, privilege. But, there is no reason to suppose that the general law with respect to the production of documents pursuant to subpoenae does not apply to this Court.

5. The New South Wales Court of Appeal in National Employer’s Mutual General Insurance Association Limited v Waind and Hill [1978] 1 NSWLR 372 held that the production of documents pursuant to subpoenae duces tecum to involves three steps.

6. Adopting the three steps referred to by the Court of Appeal in that case, it is clear that the Department of Immigration answers the subpoena and produces the documents.  First, though, the Department objects to the documents being inspected, and copied, and, secondly, objects to them being tendered as evidence in these proceedings.

7. The relevant documents were referred to euphemistically by Mr Maycock (who represents the Department for the purposes of this application) as "dob in letters".  That is, letters or communications by people providing information to the Department about prospective émigrés or applications for visas. 

8. Mr Maycock had no objection to the Court reading the documents, which were otherwise sealed in an envelope by order of a Registrar, for the purpose of determining the instant application.

9. Without revealing the contents of the documents or any identifying features, I can indicate that at least two of the documents contained on the file are anonymous in that they are neither signed nor have reference to any names. 

10. The Department claims what might be called "public interest immunity" in respect of the documents. They submit, in written submissions prepared for the purpose of the application, that, at least in respect of the third step of the Waind and Hill analysis, i.e. receipt of the documents into evidence, that the release of the documents would, expressed in terms of s 130 of the Evidence Act 1995 (Cth):

    (a)      compromise the very interest sought to be protected;

    I interpose here that is the interest in preserving the confidentiality of communications and the integrity of communications made in good faith by members of the public to the Department

    (b)      reveal information that was received under a pledge of confidentiality by the Department in the course of its administrative functions;

    (c)      put in jeopardy the physical safety and wellbeing of the author of the particular documents or other persons;

    (d)      hinder or inhibit the future ability of the Department to administer its statutory functions insofar as the Department relies on the receipt of confidential information and the subsequent "drying up" of the flow of this type of information if its sources were subjected to any form of harassment or penalty by virtue of the inability of the Department to maintain their protection and confidences; and

    (e)      adversely affect the relationship and confidence between the Department and those persons wishing to communicate with them on the understanding that where communications identity and information remains confidential

11. It is, in my view, clear that the exercise to be performed by me is what has been described in the cases as “a balancing exercise”. 

12. The written submissions of Mr Maycock refer to an extract from Hunt CJ in The Attorney General of New South Wales v Stuart (1994) 34 NSWLR 667 at 676. His Honour there said:

    "It is necessary for a party seeking to overcome a claim of public interest immunity to demonstrate his legitimate forensic purpose for seeing the documents before the Judge proceeds to the balancing process [citations omitted]"

13. The forensic purpose or, relevance of the documents, as submitted by Mr Hamwood, is related to the attitude of the husband to possible family support for the mother.  In particular, the attitude to those who might be carers for the child, the subject of these proceedings who, it is common ground, has significant special needs.

14. Additionally, it is submitted they are relevant to the attitude of the husband with respect to family support for the mother in general, in circumstances where the father makes significant allegations about her capacity to care for the child. 

15. Mr Hamwood also implicitly submits that, whether with respect to production, and certainly with respect to the tender of the documents into evidence, conditions can be imposed upon the inspection or, alternatively, if in evidence, upon publication pursuant to s 130(5) of the Evidence Act.

16. Mr North SC, who appears for the father, submits that for the documents to be relevant, that is for the documents to have the legitimate forensic purpose to which Hunt CJ made reference - the truth of the documents contained within the file would need to be established. Otherwise, he argues that they are mere assertions and, as such, of very limited probative value.

17. Ms McMillan SC, who appears for the Independent Children’s Lawyer, submits that any documents which are anonymous, in the sense of neither being signed nor having a name attached, could not be of relevance in respect of these proceedings. 

18. It is of note, it seems to me, that the affidavit of evidence-in-chief of the mother purports to cite, verbatim, a letter, said by her, to have been written by the father to the Department of Immigration.  It seems to me that the extent to which Mr Hamwood argues that the documents are relevant with respect to attitude is something that can, if relevant, be explored in cross-examination by reference to the assertion made within that affidavit when he has the opportunity to cross-examine the father.

19. I am not convinced that the matters that Mr Hamwood refers to constitute a sufficiently forensic purpose in the context of this case. That is particularly so, where, it seems to me, to be an undisputed fact that the conflict between the parties is horrific and where their attitude towards each other leaves a lot to be desired (putting it in its most neutral terms).

20. I cannot see that any further forensic purpose is legitimately served by the parties having the opportunity to inspect documents when balanced against the other matters outlined in submissions for the Department to which I have referred.   

21. I consider that the matters referred to in the submissions by Mr Maycock against their inspection, and tendering into evidence, for legitimate and sound reasons, in this particular case, outweigh any forensic purpose that could be seen to arise from those documents. 

    RECORDED  :  NOT TRANSCRIBED

22. For those reasons I order:

    ORDERS DELIVERED

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy J

Associate: 

Date:  14 November 2008