Vang & Chung (No 10)
[2025] FedCFamC1F 86
•4 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vang & Chung (No 10) [2025] FedCFamC1F 86
File number: SYC 1433 of 2020 Judgment of: CHRISTIE J Date of judgment: 4 February 2025 Catchwords: FAMILY LAW - PRACTICE AND PROCEDURE - Objections to subpoenae – Where the Applicant objects to the issuing of subpoenae – Where these objections are based on claimed procedural unfairness due to an alleged lack of notice – Where these objections are based on safety concerns pertaining to personal information contained in the subpoenae – Applicant’s review is of no utility as she had an adequate notice period – Applicant’s review is also of no utility as the personal information sought to be witheld is already known to the respondent.
FAMILY LAW - PRACTICE AND PROCEDURE- Subpoenae - Leave to inspect material produced on subpoenae – Leave granted.
FAMILY LAW - PRACTICE AND PROCEDURE – Legal professional privilege – Where a party seeks to claim legal professional privilege over certain documents in order to prevent their inspection by another party – Party granted 3 days to identify the documents which are subject to legal professional privilege.
Division: Division 1 First Instance Number of paragraphs: 28 Date of hearing: 3 February 2025 Place: Sydney Applicant: Litigant in Person Counsel for the First Respondent: Ms Tabbernor Solicitor for the First Respondent: Broun Abrahams Burreket Solicitor for the Second Respondent: Did not participate ORDERS
SYC 1433 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VANG
Applicant
AND: MR CHUNG
First Respondent
MR D
Second Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
4 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Application for Review filed 30 January 2025 is dismissed.
2.The Court notes the lawyers for the first respondent undertake not to provide a copy of the documents returned on subpoena (filed 15 November 2024) by:
(a)Westpac Banking Corporation;
(b)Commonwealth Bank of Australia; and
(c)AG Law Firm,
to the first respondent, without prejudice to the first respondent’s right to seek to be released from the undertaking.
3.The first respondent’s costs of the Application for Review are reserved to final hearing.
4.Leave is granted to the first respondent to inspect documents produced on subpoena by AD Lawyers until 4:00 pm on 6 February 2025 and separate into a separate bundle any documents to which claim of legal professional privilege is made.
5.If no claim is made within 3 days of these Orders then leave is granted to all parties to inspect the documents in order 4.
6.The documents in respect of which a claim of privilege is made will be the subject of determination by a judicial officer (other than the trial judge) in chambers.
7.For the purpose of the determination in Order 6 the first respondent shall file a 2 page submission on or before 12 February 2025 and the applicant shall file a 2 page submission on or before 17 February 2025.
8.Proceedings are adjourned to final hearing on 17 March 2025.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Vang & Chung has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
There are final property adjustment proceedings on foot between the applicant wife (“Ms Vang”), the respondent husband (“Mr Chung”) and the second respondent (“Mr D”).
Those proceedings are listed for final determination commencing 17 March 2025.
On 15 November 2024 subpoenae addressed to the following entities were accepted for filing:
(a)Westpac Banking Corporation;
(b)Commonwealth Bank of Australia; and
(c)AG Law Firm.
On 5 December 2024 the applicant filed Notices of Objection to the subpoenae.
On 29 January 2025 a Judicial Registrar determined the Objections.
On 30 January 2025 the applicant filed a Review.
Those Notices of Objections fall to be considered de novo.
Basis of objection
The filed material raises two issues:
(a)Notice; and
(b)Safety.
The applicant raised a concern about notice of the subpoena. I am not in a position to find when the applicant became aware of the existence of the subpoenae. However, I am comfortably satisfied that she has had notice of the subpoenae since at least the date on which the Notices of Objection were filed and accordingly has had adequate notice of the subpoenae such that I am not satisfied there is any procedural unfairness.
The applicant sought first access to inspect the documents to redact information about her home address and address of her employer.
The address of the wife’s employer (or former employer) is relevant to the proceedings in circumstances where the wife has declined to provide same. Her employment historically and prospectively is a relevant statutory consideration.
The orders permitting inspection were not stayed and the legal representatives for the wife have inspected the unredacted subpoenaed material. Counsel for the husband confirmed at the oral hearing that the documents with the address were not provided to the husband but the address on the documents is known to the husband’s solicitors and the husband. Counsel for the husband conveyed her instructions that her solicitors remain content not to provide the documents containing the address to their client and are prepared to offer such an assurance by way of undertaking.
In those circumstances the wife’s Review is of no utility and should be dismissed.
Other case management issues
I have had regard to the procedural history set out under the heading background in the reasons for judgment of the Honourable Justice Harper dated 10 September 2024 under the heading “Background”. I have treated that background material as a representation of the competing issues and contentions as opposed to a recitation of findings.
As the matter is listed for final hearing on 17 March 2025 other issues were raised at the hearing of the wife’s Review:
(a)Leave to inspect in relation to documents produced by Y Pty Ltd;
(b)First access in relation to documents produced by A Lawyers.
Y Pty Ltd
The wife asked the court to issue a subpoena. That subpoena was the subject of a hearing before the Honourable Justice Harper. On 10 September 2024 his Honour made the following order:
…The schedule to the subpoena issued to [Y Pty Ltd] on 19 March 2024, other than paragraphs 10 and 11, be set aside
On 23 September 2024 documents were produced in answer to the subpoena and are contained in Sleeve 23.
The parties both sought leave to inspect those documents. I agree that course is appropriate.
AD Lawyers
AD Lawyers acted in respect of the acquisition and sale of properties at E Street and H Street in Suburb F (“the Suburb F properties”) and related mortgage transactions.
On 10 September 2024 Harper J ordered:
3. With respect to any documents produced in answer to the surviving paragraphs of the subpoenas issued to [AD Lawyers] and [AE Lawyers] as stipulated in Order 2:
(a) For a period of 14 days from the date of these orders:
(i) the second respondent shall have first access to, with such access to lapse thereafter;
(ii) the second respondent has liberty to attend the registry to identify any documents produced in respect of which he claims legal professional privilege, and isolate such documents in a separate envelope or electronic folder.
(b) No party other than the second respondent may have access to documents isolated pursuant to Order 3(a)(ii), pending further order of the Court.
The first respondent raised before me a claim of legal professional privilege in respect of the same documents. I queried with which person (first respondent or second respondent) the firm held the retainer and was told the first respondent.
I did not have the benefit of any evidence about this issue. It seems appropriate to allow a short time to permit inspection by the first respondent to avoid disclosures of documents to which privilege may apply.
The first respondent sought 3 days – I will make the order expire at 4pm on 6 February 2025. The first respondent shall separate documents in respect of which a claim of legal professional privilege is made.
The wife says that these documents may be the very documents which support her contention of sham (concerning the Suburb F properties) and accordingly maintenance of privilege may run contrary to the interests of justice. I am not in a position to make a determination in respect of this issue as my viewing the documents may cause me to be unable to determine the final hearing. Accordingly, I will make directions for this matter to be determined by another judicial officer.
The first respondent shall identify any documents to which a claim of privilege is made and describe them in general terms including date and number of pages. That document is to be served on the parties and filed with the Court as a submission.
If no claim is made at the expiration of 3 days then leave will be granted to inspect all documents.
If a claim is made then the matter will be reserved to a judicial officer in chambers with the applicant to file a 2 page submission seeking leave and the first respondent a 2 page submission opposing leave.
The matter will be determined on the papers by a judicial officer other than the trial judge.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 11 April 2025
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