Vang & Chung
[2022] FedCFamC2F 1364
Federal Circuit and Family Court of Australia
(DIVISION 2)
Vang & Chung [2022] FedCFamC2F 1364
File number(s): SYC 1433 of 2020 Judgment of: JUDGE MORLEY Date of judgment: 12 August 2022 Catchwords: FAMILY LAW – subpoenas – two non-party entities subpoenaed – schedule to subpoenas to each entity an abuse of process. Legislation: Family Law Act 1975 (Cth) s 79.
Federal Circuit and Family Court of Australia Rules 2021 (Cth) pt 6.5, r 6.38.
Cases cited: Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Hatton v Attorney-General (Cth) and Ors (2000) 158 FLR 31
In the Marriage of Epstein (1993) 110 FLR 133
In the Marriage of Mallet; Commonwealth Savings Bank of Australia and Ors (1981) 63 FLR 352
In the Marriage of Scheibner-Grover (now Grossman) and Ryan [1987] FamCA 15
In the Marriage of Sharpe (1990) 100 FLR 115
Waind v National Employers’ Mutual General Insurance Association Limited (1978) 1 NSWLR 372
Division: Division 2 Family Law Number of paragraphs: 45 Date of hearing: 4 August 2022 Place: Sydney Solicitor for the Applicant: Litigant in person Counsel for the Objectors: Ms Granger Solicitor for the Objectors: Clayton Utz ORDERS
SYC 1433 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS VANG
Applicant
and: MR CHUNG
RespondentMR V
Objector
Y PTY LTD
Objector
order made by:
JUDGE MORLEY
DATE OF ORDER:
12 AUGUST 2022
THE COURT ORDERS THAT:
1.The subpoena issued by the Court at the request of the Applicant Wife to Mr V dated 23 March 2022 is struck out.
2.The subpoena issued by the Court at the request of the Applicant Wife to Y Pty Ltd dated 23 March 2022 is struck out.
3.The Application in a Proceeding filed on 9 June 2022 by Mr V is otherwise dismissed.
4.The Application in a Proceeding filed on 9 June 2022 by Y Pty Ltd is otherwise dismissed.
Costs Application
THE COURT NOTES THAT:
A.The subpoenaed parties Mr V and Y Pty Ltd made an application for costs at the conclusion of the hearing on 4 August 2022.
THE COURT FURTHER ORDERS THAT:
5.The Applicants to the costs application are to file any written submissions by no later than 4:00PM on 19 August 2022.
6.The Wife, Respondent to the costs application, is to file and serve any written submissions in relation to the costs application by no later than 4:00PM on 2 September 2022.
7.The Applicants to the costs application may file and serve (if they so choose) any written submissions in reply by no later than 4:00PM 9 September 2022.
8.Upon compliance with these orders for the filing and serving of written submissions, the matter will be considered and orders made in Chambers.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Vang & Chung has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY
These are the Reasons for Judgment that were delivered verbally and ore tenus on 12 August 2022. They have been settled herein in written form. Grammatical errors and accidental errors in reference have been amended for ease of comprehension. Legal citations have been included in full and incorporated into these Reasons.
These Reasons relate to Objections to Subpoena in a matter between Ms Vang, the Applicant Wife (‘the Wife’), and Mr Chung, the Respondent Husband (‘Husband’), relating to property settlement between them pursuant to section 79 of the Family Law Act 1975 (Cth) (‘the Act’), the parties having been married.
The matter in these Reasons concern objections to subpoenas.
On 23 March 2022, a subpoena was issued by the Court at the request of the Wife to Y Pty Ltd (‘Y Pty Ltd’).
On that same day, 23 March 2022, another subpoena was issued by the Registry at the request of the Wife to Mr V.
In the course of the hearing of those objections, it became evident that both documents were subpoenas to produce. It became evident that each of those subpoenas to produce had been purported to be served but without the tender of conduct money which, itself, rendered each of those subpoenas unnecessary to be complied with by the entities subpoenaed.
That objection was kindly and sensibly waived by counsel, Ms Granger, appearing on behalf of the subpoenaed entities but, nevertheless, it is a failure of compliance with the Federal Circuit and Family Court of Australia Rules 2021 (Cth) (‘the Rules’) that, in normal circumstances, would be fatal to the party who had the subpoena issued by the Court pressing the subpoena.
Further, on the evidence, the service of the subpoena issued by the Court to Y Pty Ltd was not served in accordance with the Rules as it was served upon a person who was no longer an office holder of the company, but was a former office holder of the company. It was also not served at the place of business or a registered office of the company or upon a designated officer of the company in accordance with the Rules.
I mention those matters in passing.
The objections were put in motion by an Application in a Proceeding as documents having been filed, one on behalf of Y Pty Ltd and the other on behalf of Mr V by solicitors acting for those subpoenaed entities.
The Husband has not joined in the hearing of the Objection to Subpoenas issue.
Material relied upon
The objecting entity, Y Pty Ltd, relied upon an affidavit of Mr WW affirmed 2 August 2022 and, in part, relied upon affidavits by the other subpoenaed entity (a person) Mr V, of 5 April 2022, and the two subpoenas.
The Wife relied upon her affidavit of 1 June 2022 and also her affidavit of 28 July 2022.
I have considered all of that material.
Consideration
The objection to each of the subpoenas was raised as follows:
(1)Principally on the basis of an abuse of process in that the schedules attached to each of the subpoenas were asserted to be cast so wide as to be oppressive to each of the subpoenaed entities; and
(2)Further, on the basis that they were so wide that they would have required each of the subpoenaed entities to virtually hunt through the whole of their records for the corporation in their corporate records for the individual or documents, where in specie or in data, held by him relating to the conduct of his business so as to attempt to identify documents which may fall within the terms of those schedules.
Parts of the schedule to the subpoena issued to Y Pty Ltd are totally inapplicable to the purpose of a subpoena to produce documents but, rather, sought disclosure of information. In other words, the subpoena was in the nature of an interrogatory rather than what is appropriate in a schedule to a subpoena.
For a very quick example of defect in the schedule to the subpoena issued to the individual, Mr V, paragraph 3 sought:
Any financial investments you act on behalf of [Mr Chung] [the Husband] his trust or any corporations related to him.
That on its own would require Mr V to go, first of all, to seek to establish what corporations are related to the Husband and then to all of his materials to see if he has any “financial investments you act on behalf of” the Husband, his trust, or any corporation relating to him.
It is indefinite; it is too wide. Even if there was a little bit of specificity as to what it really meant, it would require the person subpoenaed virtually to go through the whole of their business records and, beyond that, possibly require them, probably require them, to make their own inquiries as to what corporations relate to the Husband.
It was accepted, in effect, in the course of the hearing by the Wife that the schedule to each of the subpoenas was defective. So much was pretty pointedly conveyed to her by the Court when the matter was set down for the hearing of the objections.
In the course of things, the Wife provided, as an attachment to one of the affidavits upon which she relied, her affidavit of 28 July 2022, amended schedules for each of the subpoenas. Unfortunately, those amended schedules suffer from the same defects as the schedules objected to in the subpoenas as issued.
For instance, in dealing with the Wife’s suggested alternate schedule for the subpoena material, Y Pty Ltd, it seeks for Y Pty Ltd:
Please provide below for the period 28 August 2014 until now.
Item number 3 is company resolutions. Presumably, that means all company resolutions of Y Pty Ltd whether they relate to any matter touching these proceedings or not.
Item number 4 is “trust agreements, loan agreements.”
Item number 5 is:
Documents and records related to changes in company shares, changes in board
members, and company ownership structure;
This continues so forth and so on.
Much of the language in the alternate schedules proposed by the Wife is uncertain.
The objecting entities were represented at the hearing of the objections on 4 August 2020 by Ms Granger of counsel, instructed by solicitors acting on behalf of each of the instructed entities, not being solicitors engaged on behalf of a party in these proceedings.
Ms Granger presented her submissions and also provided to the Court a suggested revision of the schedules to the objected subpoenas by way of a schedule divided between a column setting out the part of the schedule objected to, a column suggesting a proposed amendment, and then a column indicating a summary of the basis of the objection that justified the substitution. I will refer to that shortly.
The Law
The touchstone case for objections to subpoena on the basis of relevance is Commissioner for Railways v Small (1938) 38 SR (NSW) 564 and on the basis of abuse of Court’s process is Waind v National Employers’ Mutual General Insurance Association Limited (1978) 1 NSWLR 372.
The continuing prominence of Commissioner for Railways v Small shows the genius of former Jordan CJ of New South Wales.
The objections in this matter are not put on the basis of relevance but, as I have already said, on the basis of abuse of the Court’s process.
In a case some time ago in the Family Court of Australia in In the Marriage of Epstein (1993) 110 FLR 133, Treyvaud J noted:
[16] In 1978, in Lucas Industries Ltd. v. Hewitt 45 FLR175 and 189-90, Smithers J explained the use of the subpoena, and its abuse, in the following terms:
The purpose of the process of subpoena is to facilitate the proper administration of justice between parties. For that purpose it is the policy of the law that strangers who have documents may be put to certain trouble in searching for and gathering together relevant documents and bringing them to Court. It is according to the same principle that persons who have knowledge of facts are put to the inconvenience of being brought to court and required to give evidence. ...It would, no doubt, be a good reason for failure to produce documents that the effort and expense involved in doing so was greater than ought reasonably to be required. This is a matter which would at that stage be capable of rational resolution by the Court according to the circumstances. So far as the effort and expense in arranging for production of particular documents in any case exceeded what was reasonable, their non-production would be acceptable to the Court. But if a subpoena be wholly set aside on the grounds that on its face it is oppressive, then the subpoena wholly fails and there is the possibility that although some or even substantial compliance might have been undertaken with a minimum of effort, the whole procedure may be needlessly frustrated.
[17] In 1984, in Purnell Bross v. Transport Engineers Pty. Ltd. 73 FLR160 at 174-5, Powell J summarized circumstances in which the Court would exercise its power to set aside a subpoena. Having done so, he took a global view of the Court's power, saying:
It seems to me, however, that when, as one does, one finds assertions that the Court's power to set aside a subpoena is but part of the inherent jurisdiction of the Court (see, for example, R. v. Lewes Justices; Ex parte Secretary of State (supra) at 240 per Lord Parker CJ, 244 per Bridge J (as he then was) coupled with assertions that a subpoena will be set aside if it be used for an impermissible, or illegitimate, purpose, or, if to require compliance with it would be oppressive (see, for example, Commissioner for Railways v. Small (supra) at 573-575 per Jordan CJ) it is difficult to avoid the conclusion that, in reality, the Court's power to set aside a subpoena is but one aspect of the Court's inherent jurisdiction to prevent an abuse of its process by a party to litigation, and that, accordingly, the particular classes of case which I have recorded above are to be regarded as no more than examples of situations which the courts, in the past, have held, and, in the future, would hold to be cases of an abuse of process.
In summary, the relevant law relating to abuse of the Court’s process through “fishing” expeditions is found in the judgment of then-Judicial Registrar and later her Honour Moore J, now retired, in In the Marriage of Sharpe (1990) 100 FLR 115, cited with approval by the Full Court in the matter of Hatton v Attorney-General (Cth) and Ors (2000) 158 FLR 31:
A subpoena duces tecum is a writ issued by the court upon application by or on behalf of a party. It commands a person to whom it is directed, to attend before the court and to search for and produce to the court, documents relating to the cause or matter. It carries upon its face a warning of the possible consequences for non-compliance being attachment and fine. They are in the nature of peremptory orders demanding obedience.
Discovery and inspection of documents is a pre-trial procedure to ascertain the existence, nature and contents of relevant documents. Whilst the process of discovery is subject to the control of the court and the court can determine matters such as the validity of objection to production for inspection and generally enforce the duty to make disclosure and grant inspection, the function and the practice and procedure relating to it differs from the issue of subpoean [sic] whether issued against a stranger or against a party to proceedings.[1]
[1] In the Marriage of Sharpe (1990) 100 FLR 115, 118.
Her Honour then refers to a Full Court decision of In the Marriage of Scheibner-Grover (now Grossman) and Ryan [1987] FamCA 15 at paragraphs [24] and [25] which reads as follows:
[24] We should not let the opportunity pass without making some observation about use of the provisions of order 28 as an aid to discovery.
[25] In our view, order 20 governs the practice and procedure for pre-trial discovery and inspection and order 28 should only be used to ensure the production of appropriate documents at the hearing of any application.
Scheibner-Grover refers to Waind and In the Marriage of Mallet; Commonwealth Savings Bank of Australia and Ors (1981) 63 FLR 352.
I refer to the decision of Moffit JA in Waind. The relevant passage is as follows:
… The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise …
Upon the first step the person to whom the subpoena is addressed may seek to, and have, the subpoena set aside on the ground that it was improperly issued and an abuse of the power to compel the production of documents in any one of a number of ways. Such a case is where the subpoena is used for the purpose of discovery. The essential feature of discovery in this connection, as appears from Burchard’s case ([1891] 2 Q.B. 241, at pp. 247, 248) and Small’s case ((1938) 38 S.R. (N.S.W.) 564, at p. 574; 55 W.N. 215) is that the person to whom the subpoena is addressed will have to make a judgment as to which of his documents relate to issues between the parties. It is oppressive to place upon a stranger the obligation to form a judgment as to what is relevant to the issue joined in a proceeding, to which he is not a party. Hence it is an abuse of the use of a subpoena to impose this obligation. It follows that it is an abuse to use any subpoena, i.e. even to a party to obtain discovery.[2]
[2] Waind v National Employers’ Mutual General Insurance Association Limited (1978) 1 NSWLR 372, 381[E]-[F], 381[G]-382[A].
The relevant parts of the Rules relating to subpoenas are found in Part 6 thereof and, in particular, provisions of Part 6.5 of the Rules deal with the issue of subpoenas, service of subpoenas, and the tendering of conduct money as a necessary component. It also deals with rights of inspection and so forth.
Rule 6.38 deals with objection to production or inspection or copying of a document. It grants the right not only to parties to the proceedings but, of course, to entities subpoenaed to object to production, to object to inspection, to objection to photocopying of documents (the Rules providing a general photocopying right other than in relation to a certain class of documents, medical records, child welfare matters, police records), and so forth.
In this matter, it has been obvious from the start that the schedules to the subpoenas, as issued by the Court, are, in this case, almost completely oppressive in that they are cast in uncertainty in various parts, cast far too wide, putting an obligation on the subpoenaed entities to decide, when examining each individual document in their personal, on the one hand, or corporate, on the other hand, records whether or not they relate to this matter, and also to make up their own mind and judgment as to what corporations, for instance, involve the respondent husband and are relevant in these proceedings.
As I have already said, the alternate schedules proposed by the applicant wife in her affidavit suffer from the same defect rather than curing that defect and do not assist her in that regard.
The very detailed schedule of amendments to the schedules to the subpoena (by the look of them, produced after a great deal of thought and work) prepared and presented as attachments to affidavit on behalf of the subpoenaed entities are, in effect, the subpoenaed entities (through their legal advisors) seeking to do the work of the party who sought issue of the subpoenas in repairing the defects in the schedules.
Though it may be possible to put the jigsaw puzzle together and exercise the Court’s power to disallow the subpoena in part, as the relevant rule allows, and substitute, for the disallowed parts, corrected parts, as set out in the schedules provided by the subpoenaed entities, it is not the function of the Court to put those jigsaw puzzles together. I would add, with absolutely no criticism, rather the reverse of criticism, that it is not the function of the subpoenaed entities to have to go to the troubled of repairing the defects of the schedule.
I find that the schedules in the original subpoenas are an abuse of process in that they are oppressive upon the entities subpoenaed, they are examples of fishing expeditions. I find that the submissions, in effect, of the wife, as to alternate schedules, suffer from the same defects. I find that it is not up to the subpoenaed entities to do the work of the party seeking issue of the subpoena and repair the schedules and I find that it is not up to the Court to do the work of repairing the schedules where, in relation to both subpoenas, virtually the whole of the schedules are infected with the objectionable matter.
Accordingly, I uphold the objection in relation to both subpoenas.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley. Associate:
Dated: 21 October 2022
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