Vicente & Vicente
[2024] FedCFamC1F 504
•29 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vicente & Vicente [2024] FedCFamC1F 504
File number MLC4816 of 2023 Judgment of WILSON J Date of judgment 29 July 2024 Catchwords FAMILY LAW – PRACTICE AND PROCECDURE – failure by subpoenaed non-party to produce documents – application to file late notice of objection – application dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – costs application by the applicant against the subpoenaed party – subpoenaed party to pay costs of the day.
Legislation Family Law Act1975 (Cth) s 117(2A) (g)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 12.13(2)
Cases cited Commissioner of Railways v Small (1938) 38 SR (NSW) 564
Conrock Ltd v CSR Ltd [1990] FCA 461
Woodcock & Woodcock (2021) 64 Fam LR 489
Division Division 1 First Instance Number of paragraphs 16 Date of last submission 29 July 2024 Date of hearing 29 July 2024 Place Melbourne Counsel for the applicant Mr K. McIvor Solicitor for the applicant Sayer Jones Solicitor for the respondent Ms L. Villemagne-Sanchez, Lander & Rogers Counsel for the non-party Mr J. Livitsanos Solicitor for the non-party Gadens Lawyers ORDERS
MLC 4816 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MS VICENTE
Applicant
AND MR VICENTE
Respondent
ORDER MADE BY
WILSON J
DATE OF ORDER
29 JULY 2024
THE COURT ORDERS THAT –
1.Leave to file notice of objection by B Ltd out of time is refused.
2.B Ltd must comply with the subpoena issued against it on 2 July 2024 by providing the documents sought, in default of which all parties may apply to the court for such relief they are advised.
3.The applicant’s costs of $1000 for Mr McIvor's fees are payable in 30 days by B Ltd.
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 Vicente & Vicente has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
This application was brought on by me in view of what I regarded as some peculiar correspondence between the parties relating to a subpoena issued on 2 July 2024 addressed to the proper officer B Ltd. The subpoena is nine paragraphs in total and seeks a collection of financial documents relevant to the parties' s 79 application. The correspondence was copied to my chambers last Friday (today being the following Monday) in which the recipient of the subpoena had been corresponding with the party issuing the subpoena requesting the issuing party to demonstrate to the satisfaction of the recipient of the subpoena that the documents sought were relevant.
That piqued my interest because that exchange of questions and answers seemed to me to invert the obligation of a recipient of a subpoena in accordance with the authorities that I traced at length in Woodcock v Woodcock.[1]
[1] (2021) 64 Fam LR 489.
It transpires that the period within which the recipient of the subpoena had to produce documents expired on 16 July of this year. The recipient of the subpoena also had until earlier that same day to file any notice of objection in respect of the subpoena. B Ltd failed to produce documents within the time limited. It also failed to indicate by objection that it complained or protested about the production of the documents sought.
Upon receiving the copied communications between the parties last Friday I directed the parties to appear before me today and for B Ltd to file an affidavit and submissions detailing its factual and legal position about why it sought answers from the issuing party before B Ltd would respond to the subpoena.
Over the weekend B Ltd provided submissions and before close of play on Friday an affidavit setting out its position. It turns out that B Ltd wishes or wished (had it been permitted to do so within the time limits prescribed by the rules) three grounds for its objection to responding to the subpoena addressed to it. The first related to relevance. When fully understood that amounted to a complaint by B Ltd that the subpoena was too broad and that it inquired into matters that had no "apparent relevance" within the meaning of the authorities surveyed in Woodcock.
One wonders how a stranger to the litigation in the shoes of B Ltd would ever know about the breadth of the issues in a s 79 application having regard to the fact that it is not and never has been a party to that litigation. Litigation in this court is not comparable to litigation in common law courts where pleadings define the issues nor is a s 79 application a case in respect of which there are incremental causes of action as might found a cause of action in a common law court, in a state Supreme Court, or indeed in a statutory cause of action in the Federal Court.
The second ground of objection that B Ltd wanted to raise related to what it termed erroneously “commercial sensitivity” and “commercial confidence” although it relied on the phrase “commercial sensitivity”. As I explained to Mr Livitsanos, since the decision of Pincus J in Conrock Ltd v CSR Ltd[2] an asserted claim to resist disclosure on commercial confidentiality or commercial in confidence has not been recognised in the law. I have applied that thread of reasoning over the years during which I have sat on the bench to resist asserted claims to refuse to produce disclosure and axiomatically the refusal to give documents under subpoenae.
[2] [1990] FCA 461.
The third ground of objection was said to relate to oppression. That appeared to have a connection to the first ground. When properly understood it seemed to amount to a contention that the recipient of the subpoena would be oppressed in responding to the documents by trawling through its records in a manner that went beyond mere fishing of which Sir Frederick Jordan spoke in Commissioner of Railways v Small.[3] This case is yet to go before a mediator. It was said that the documents that have been the subject of the subpoena are required with a view to valuing one or more of the assets that can be placed before the mediation with a view to more purposely advancing the mediation. If the mediation fails the case is listed for trial before me on 27 November of this year.
[3] (1938) 38 SR (NSW) 564.
Taking first the contention that it is some unspoken practice or good conduct for solicitors to explain to one another the basis upon which a subpoena has been brought I am unable to speak of the practise among solicitors but I am able to say that a subpoena's validity is to be assessed by reference in part to whether it asks for documents that are apparently relevant. I surveyed that in Woodcock and do not intend to repeat what I there said.
The documents that are the subject of the subpoena should be apparently relevant on their face. Having examined in brief form the categories in paragraphs two to nine of the subpoena of 2 July 2024 they at least satisfy that requirement. I am not persuaded that there is an enforceable rule of practice or procedure still less one that I should countenance in the major complex financial proceedings list to the effect that before a subpoena is answered the party that is the recipient of the subpoena needs to be persuaded that the documents sought are relevant. The subpoena should speak for itself with the apparent relevance of the documents being evident from the face of the document.
In this case B Ltd let 13 days expire subsequent to the time within which it was required to produce documents before indicating that it intended to object. Its response to the subpoena it is out of time. Today its counsel asked for leave for an extension of time and within which it could object. I asked for the basis for the grant of that leave, it being an indulgence. Mr Livitsanos was not able to tell me why any such leave should as an indulgence be granted. I decline to extend time. Leave to file a notice of objection out of time is refused. Therefore, the only question is whether the subpoena should be answered. In my view it must be. The recipient of the subpoena will be required to comply with the documents sought in default of which all parties have an entitlement to apply to the court for such relief as they seek.
Rather ambitiously having regard to the approach that B Ltd has taken to its obligations to comply with the subpoena, it sought costs of compilation of documents to respond to the subpoena and Mr Livitsanos brought to my attention that a power exists under the rules for me to make such an order. I decline to make such an order. The quantification of its costs can be the subject of separate agreement and if there is no satisfaction as between the parties in respect of the payment of those costs then that discussion may well fall for another day. The trial is confirmed on the date that I have mentioned. Orders previously made for the engagement of an expert to value the relevant assets in this case also continue to apply.
Having just ruled in respect of the subpoena issue, Mr McIvor applied for costs of today. He said that the scale entitlement was somewhere in the range between $266 at the lower range and $1247 at the higher range.
In debate Mr Livitsanos very properly recognised that rule 12.13(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 empowers the court to make an order that a person not being a party to the proceeding may be ordered to pay costs. Mr Livitsanos submitted that in the circumstances of this case s 117(2A) had not been enlivened in such manner that B Ltd should be visited with a costs order. I take a different view.
In my view today's time in court ought not to have been consumed in the way that it had. B Ltd was not entitled to require, compel or even expect the party issuing the 2 July subpoena to explain to it in detail the relevance of the document sought before B Ltd complied. A subpoena is a command of the court to the party to which the subpoena is issued to respond. Here, rather than responding or even filing a notice of objection, B Ltd permitted 13 days to elapse before anything was done and it was only when I required the parties to come here to explain what the true gravamen between them was did today's debate unfold.
Section 117(2A) has been engaged in respect of subparagraph (g) "such other matters as the court considers relevant". The other subparagraphs of 117(2A) are directed to "a party" to which B Ltd is not. The carve out in s 117(2A)(g) is not limited to the conduct or anything to do with the parties and therefore operates in such way as to attract its application to that entity.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Wilson. Associate:
Dated: 29 July 2024
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