VISSELL & VISSELL

[2019] FamCA 697

FAMILY COURT OF AUSTRALIA

VISSELL & VISSELL [2019] FamCA 697

FAMILY LAW – PRACTICE AND PROCEDURE – Review of a registrar’s decision – Subpoenas – Where the registrar dismissed objections to a number of subpoenas – Where the objections relied on the grounds of relevance, fishing and abuse of process – Consideration of whether the production of documents serves a legitimate forensic purpose and whether “it is on the cards” that the documents sought would have relevance to the issues in the case – Where the Court is satisfied that the subpoenas relate to relevant material and do not amount to fishing or an abuse of process – Application dismissed.

Family Law Act 1975 (Cth) s 121
Family Law Rules 2004 (Cth) r 18.08

Alister v The Queen (1984) 154 CLR 404
Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905
Bruce F McLaren Holdings Pty Ltd & Ors & McLaren & McLaren (2000) 26 Fam LR 294; FLC 93-030
Hatton & Attorney General of the Commonwealth of Australia & Commonwealth Bank of Australia & Commonwealth Development Bank of Australia (2000)
FLC 93-038; 26 Fam LR 570
Hennessy v Wright (No. 2) (1890) 24 QBD 445
Hunt v Russell and De Pinto (1995) 63 SASR 402
Hunter & Child Support Registrar [2017] FamCAFC 259
Kelton & Brady and Anor [2017] FamCAFC 186; (2017) FLC 93-799
National Employers Mutual General Association Limited v Waind & Hill [1978] 1 NSWLR 372
R v Saleam [1999] NSWCCA 86
Sadek and Ors & Hall and Anor (2015) FLC 93-634
Trade Practices Commission v Arnotts Ltd and Ors (No 2) (1989) 88 ALR 90

APPLICANT: Mr Vissell

RESPONDENT: Ms Vissell

FILE NUMBER: SYC 2224 of 2018

DATE DELIVERED: 30 September 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney in Chambers

JUDGMENT OF: Loughnan J

HEARING DATE: 27 September 2019

Orders

1. The Application in a Case filed 16 July 2019 is dismissed.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vissell & Vissell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC2224/2018

Mr Vissell

Husband

And

Ms Vissell

Wife

REASONS FOR JUDGMENT

Introduction

1. Before the Court is the application of L Pty Limited; M Pty Limited and CC Pty Ltd (“the objectors”) to review the decision of a registrar in respect of objections to subpoenas to produce documents.  The application is dismissed and what follows are the reasons for that decision.

Background

1. There are proceedings before this Court between Mr Vissell (“the husband”) and Ms Vissell (“the wife”) in respect of issues arising from the breakdown of their marriage.  Relevantly they include proceedings for property settlement.

2. On 23 May 2019 subpoenas to produce documents were issued on the application of the wife to the following entities:

   a)L Pty Limited (ACN ...);

   b)M Pty Limited (ACN ...);

   c)CC Pty Ltd

   d)P Pty Ltd

   e)Ms V of S Pty Ltd

   f)N Pty Ltd

   g)J Pty Ltd

   h)K Organisation

3. On 7 June 2019 the objectors lodged objections to all of those subpoenas.

4. Those objections came before a registrar in chambers and on 4 July 2019 all of the objections were dismissed.

5. On 16 July 2019 the objectors filed an Application in a Case seeking to review the decision of the registrar. That application was out of time and I have not seen reference to an application, let alone an order, to extend the time within which the application could be filed (r 18.08 Family Law Rules 2004 (Cth)). That is the end of the matter but for the assistance of the parties I will refer to the merits of the application.

6. The review of the decision of a delegate proceeds by hearing de novo.  Therefore I am to consider the objections afresh.

7. By an email of 12 August 2019 the objectors confirmed that they relied on:

   ·Application in a Case filed 16 July 2019

   ·affidavit of Ms BB filed 16 July 2019

   ·affidavit of Ms BB filed dated 2 August 2019

   ·Outline of Case Document dated 18 June 2019

   ·Notices of Objection (8)

8. I can find nothing recently filed on behalf of the wife but have had regard to written submissions from the wife’s counsel lodged on 27 June 2019.  Those submissions relevantly attach a copy of a letter dated 18 March 2019 from Mr DD, a forensic accountant.  It is asserted, without complaint on behalf of the objectors, that Mr CC has been instructed to give evidence as a single expert in the substantive property proceedings between the husband and wife.

9. The objections are in similar terms and proceed on the basis of “relevance, fishing expedition, oppressive and invasion of privacy”.  In relation to some subpoenas (those to addressees (a), (b), (c), (f) and (g)) there is also an objection on the basis of scope, oppression and commercial confidence.  The objectors seek that the subpoenas be struck out in their entirety but in relation to some of the subpoenas, in the alternative, the objectors seek that the subpoenas be amended by striking out some paragraphs.

10. Each of the Notices of Objection sought that in the event that the subject documents were to be produced, the objectors have first access to the documents, that only Court-appointed experts and legal representatives be granted access to the documents (and not the parties) and that the documents be returned to the respective subpoenaed entities upon conclusion of the proceedings.

Subpoenas

1. The first three subpoenas are directed to the objectors themselves.

2. The subpoena issued to L Pty Limited sought the production of the following:

   1.A copy of the subpoena

   2.All company tax returns, notice of assessments, receipts, reports, business transactional receipts and business tax returns, profit and loss statements, balance sheets, financial statements, trust account statements, trust ledgers, journals raised, Trust Deeds and BAS documentation concerning L Pty Limited (ABN ...) for the period 1 January 2015 to present.

   3.A copy of all inventory inclusive of motor vehicles, trailers and equipment acquired, disposed of, leased, financed by or on behalf of L Pty Limited (ABN ...) for the period 1 January 2015 to present.

   4.All contracts, memorandums, business transactional receipts, loan agreements tax invoices, cheques payable or received which concern any transactions or payments exchanged between:-

   (a)L Pty Limited (ABN  ...) and Mr Vissell, born in 1979;

   (b)L Pty Limited (ABN  ...) and Mr Q Vissell, born in 1944;

   (c)L Pty Limited (ABN ...) and Ms R Vissell, born in 1954

   (d)L Pty Limited (ABN ...) and T Pty Ltd (ACN …) trading as D Pty Ltd;

   (e)L Pty Limited (ABN ...) and CC Pty Ltd (ACN);

   (f)L Pty Limited (ABN  ...) and M Pty Limited (ACN ...);

   (g)L Pty Limited (ABN ...) and S Pty Ltd (ACN …);

   (h)L Pty Limited (ABN ...) and P Pty Ltd ACO …;

   For the period 1 January 2015 to present.

3. The objectors objected to the production of the documents named in paragraphs 2, 3 and 4 above.

4. The Notice of Objection for this subpoena also included:

   1.The documents sought are irrelevant, a fishing exercise, and or concern confidential business records of my business where productions/disclosure will compromise my commercial and business interests.

   2.I am not named as a third party, nor is there any pleading which makes my records a relevant fact or matter in contest in the proceedings.

   3.The scope of the documents sought is too broad and requires production of records exceeding multiple pallets in terms of volume

   4.There will be significant time and cost involved in answering the subpoena, of approximately 3-4 weeks, and appropriate conduct money will need to be paid in advance of the undertaking.

5. In the Outline of Case document provided to the Court, the objectors further assert that these subpoenas are oppressive and simply “a fishing expedition”.  They claim that the wife has failed to establish the relevance of these subpoenas and that the schedules would require the production of overly onerous material, causing the entities to engage a team of staff to work over a period of weeks to produce it.  It is also submitted that the schedules would cause the production of material that is commercially confidential to the objectors and they claim that “open access” to such documents would cause harm to their commercial interests.

6. The submissions filed on behalf of the wife deal with some of the issues raised by the objectors.  In addressing the relevance of the subpoenaed parties to the proceedings, the purported links were said to be to the following effect:

   (a)an obvious familial connection in that the directors of the objecting companies are the husband’s parents;

   (b)on the husband’s own account, the objectors have been lending him money to keep his business afloat;

   (c)the single expert in the proceedings has, in correspondence, expressed the opinion that some of the relevant companies are not “trading at arm’s length” and that a $200,000 transaction from D Pty Ltd to the objectors has the appearance of “shifting profit”;

   (d)it appears that D Pty Ltd is writing its own invoices from the objectors; and

   (e)the registered office of the objectors is N Pty Ltd, who also prepare accounts for T Pty Ltd.

7. It is submitted by the wife’s counsel that the dealings subject to the subpoenas in this matter are therefore not only a legitimate line of enquiry but are actually “critical for the single expert being able to perform his task in assisting the Court itself”.  It is further contended that the pertinence of the subpoenas is clear in light of the vast amount of income at stake in this matter and the husband’s lack of disclosure in the course of proceedings.

8. The wife’s counsel contend that issues to the following effect have been raised and are presently unanswered:

   (a)the worth of T Pty Ltd;

   (b)whether T Pty Ltd dissipated assets by purporting to lose a contract in favour of doing business with a company owned  by his parents;

   (c)any other forms of “profit sharing” that the husband may be involved in; and

   (d)the issue of T Pty Ltd raising invoices on behalf of entities associated with his parents.

Discussion

Relevance

1. In Sadek and Ors & Hall and Anor (2015) FLC 93-634 the Full Court said at 80,091:

   17. In the well-known decision of National Employers Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372, Moffitt P identified the three steps in the procedure of having a third party bring documents to court pursuant to a subpoena and their use thereafter.

   18. The first step is the witness obeying the subpoena by bringing the documents to the court. At that stage the court should determine any application of the witness to the subpoena and any dispute concerning the production of the documents to the court. His Honour gave examples of the circumstances in which an application might be made and as one such example said at 382:

   A witness might argue the documents must be sought for some undefined spurious reason, as they have no conceivable relation to the proceedings. The court would jealously consider any of such submissions having regard to the invasion of the private rights of the stranger occasioned by the operation of the subpoena.

   19. The second step identified by Moffitt P was the consideration of the court granting access to the documents after their production to the court. At 384 Moffitt P said:

   It is true that, in the exercise of the power in relation to the subpoena, the invasion of the rights of a third party have been jealously guarded. It is accepted that the documents should not go beyond the judge against objection of the owner, unless there is valid reason to do so. It is clear that it can only be legitimate to do so, so far as it is necessary in the proper conduct of litigation. It is difficult to see why to do that which is “requisite for the purpose of justice” should be restricted by some arbitrary limit. Of course, the concept of what is requisite for the purpose of justice, and how the compromise between the requirements of justice between litigants and the rights of a stranger should be met, may change and, indeed, be different now from the concepts of last century, just as concepts as to what is appropriate between parties has changed in favour of fuller disclosure of relevant matters. …

   …

   So as far as factual matters are concerned, the proper conduct of the litigation can only be that which fairly leads to the introduction of all such evidence as is material to the issues to be tried, and the testing of that evidence by the accepted procedures of the court. The only legitimate purpose of requiring the production, and permitting the inspection, of a stranger’s documents can be to add, in the end, to the relevant evidence in the case.

   20. The third step is the admission of such evidence as may be admissible into evidence.

2. In Kelton & Brady and Anor (2017) FLC 93-799 the Full Court of this Court noted that it had previously been established that a proper basis for objection is that the documents do not have “apparent relevance” to the issues in the proceedings.[1] It was further explained at [16]:

   In so holding for the purposes of proceedings in the Family Court, the Full Court in Hatton, above, cited with approval what was said by Beaumont J in Trade Practices Commission v Arnotts Ltd and Ors (No 2):[2]

   … Does the material sought have an apparent relevance to the issues in the principal proceedings, ie, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent?  This involves a consideration of the matter from the standpoint of [the person at whose request the subpoena was issued].

   [1] Kelton & Brady and Anor (2017) FLC 93-799 at [15] citing Hatton & Attorney General of the Commonwealth of Australia & Commonwealth Bank of Australia & Commonwealth Development Bank of Australia (2000) 26 Fam LR 570.

   [2]Trade Practices Commission v Arnotts Ltd and Ors (No 2) (1989) 88 ALR 90, 103.

3. A phrase often used to describe the test for relevance is whether it is “on the cards” that some useful material to support the issuer’s case will be found within the description in the subpoena.[3]  Therefore I am to consider whether the material that the wife seeks to have produced will be relevant in the context of her application before the Court. 

   [3] See for example R v Saleam [1999] NSWCCA 86 at [11]; Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905 at [32].

4. I have set out the submissions provided by the wife’s counsel above and I accept that there is a level of enmeshment between the affairs of the husband and those of the entities subject to the objections.  They operate in close physical proximity, provide services to each other and serious questions are raised as to the exact extent to which their affairs intermingle.  I accept that the material is likely to aid the single expert in preparing the report which will no doubt be of significant assistance to this Court in these proceedings and will impact on each party’s application.

5. The marriage in question involved cohabitation from 2007 to 2017.  One can understand the relevance of records covering the last two years of cohabitation and since.

6. I do not accept that the subpoenas should be struck out on the basis of relevance.

Privacy

1. The competing consideration of privacy was discussed in Bruce F McLaren Holdings Pty Ltd & Ors & McLaren & McLaren (2000) 26 Fam LR 294 (“McLaren”) where it was held by the Full Court of this Court at 87,490:

   50. We accept that the rights of third parties to have their privacy maintained is a consideration to be taken into account when determining whether it is just to require the production of documents. However, that is only one of a number of factors to be taken into account.

   51. His Honour clearly took this matter into account when he said:

   “I must also have regard to the fact it is intrusive for the Court to make orders that persons who are not parties to proceedings should make such disclosure. On the other hand there is no suggestion that by making such an order I am intruding into the area of commercial in confidence or otherwise causing embarrassment to the other parties.”

   52. In any event, the confidentiality of the documents ordered to be produced is protected by s 121 of the Family Law Act 1975. If the applicants were not satisfied with the protection afforded to them by that section, it was open to them to seek orders from the Judge to protect their privacy. Order 20 r 8 of the Family Law Rules provides that an order for the production of documents may be ordered “subject to such conditions and restrictions as (the court) thinks it proper to impose”. We are not aware of any such application having been made to his Honour.

2. I acknowledge that ordinarily privacy would be a relevant consideration when assessing an objection on behalf of a third party entity that is unrelated to proceedings save for being the subject of a subpoena.  However, as indicated above, the particular records in this case are of such apparent relevance to these proceedings that the entities cannot be thought of as unrelated. 

3. As to the suggestion that there would be “open access” to the subpoenaed records that would threaten the commercial interests of the objectors, I do not understand the submission. The records in question will be produced to and retained by the Court. Any resultant judgment is anonymised so as to be consistent with the aims of s 121 of the Family Law Act 1975 (Cth). The objectors do not suggest who might be motivated to use the records to cause harm to the objectors and that is likely to be because no one who could have access to the records would be so motivated. The parties and their lawyers are bound not to use documents or information obtained in proceedings for a collateral purpose unless and until the material is received into evidence. As is referred to in McLaren above, the Court can be asked to require undertakings or impose conditions on the use of documents or records.

4. Finally, privacy is only one of the factors to be considered in deciding whether to uphold an objection.  The subpoena will not be struck out based on this criterion.

Fishing

1. Subpoenas must not be used for the purpose of fishing for information that the party at whose application the subpoena issued, hopes, but does not reasonably expect, is in existence.  In Hunt v Russell and De Pinto (1995) 63 SASR 402 it was considered by Perry J whether a fishing complaint should be determined with reference to the documents produced. It was stated at 408:

   Furthermore, I do not think that in a case where the objection taken is that the subpoena, or part of it, is “fishing”, the appropriate procedure is for the judge at the outset to take the documents into his or her custody and then to peruse them to see if any of them might be relevant to the proceedings. To countenance such a course would be simply to pass the fishing rod to the judge.

   …

   Generally speaking, a complaint that a subpoena is “fishing” should be determined by reference to the judge's knowledge and understanding of the case and the description of the documents in the subpoena.

2. Further discussion continued at 409 as follows:[4]

   In my view, consistent with the dicta to which I have referred in Alister, a mere “fishing” expedition should not be allowed, and before a court should proceed to inspect the documents sought to be produced, it must be “on the cards” that the documents “will materially assist the defence”, or, having regard to the terms of s 25 of the District Court Act, it must be “on the cards” that the documents sought to be produced will be of “evidentiary value” in the proceedings.

   If that test is satisfied, the subpoena is not to be characterised as “fishing” and will not be struck out as bad.

   If the subpoena is bad as a mere “fishing” exercise, the court does not have to deal with any objection based on public interest immunity, legal professional privilege or statutory immunity from production. The subpoena is struck out before the stage is reached at which any such objection falls to be considered.

   On the other hand, if the subpoena is not bad as “fishing” or otherwise vexatious or oppressive, objections based on public interest immunity, legal professional privilege or statutory immunity from production then fall to be considered. Whether or not, during the course of consideration of any such grounds of objection, the court should view the documents, is a question to be approached in the manner identified in Alister.

   [4] See Alister v The Queen (1984) 154 CLR 404.

1. In HennessyvWright (No. 2) (1890) 24 QBD 445 at 448 Lord Esher described the conduct which subsequently gave rise to the concept of a “fishing expedition” as occurring where:

   “… the plaintiff wishes to maintain his questions, and to insist upon answers to them, in order that he may find out something of which he knows nothing now, which might enable him to make a case of which he has no knowledge at present.”

2. In Hunter & Child Support Registrar (2017) FLC 93-799 the Full Court referred to the observations of Wigney J in Gloucester Shire Council v Fitch Ratings Inc [2016] FCA 587 (“Fitch”) as follows:

   … A finding of “fishing” amounts to a finding that the subpoena has no legitimate forensic purpose because the documents are sought to discover if the issuing party has a case, not to support a case that has already been articulated: Commissioner for Railways v Small [1938] NSW St Rp 29; (1938) 38 SR NSW 564 at 574.

   As Wigney J also observed in Fitch there is a connection between a conclusion that a subpoena is a fishing expedition and the question of oppression. Wigney J observed (at [24]):

   … A finding of “fishing” also appears to involve a question of oppression. A subpoena will be more readily set aside if greater numbers of documents are required to be produced in circumstances where it cannot be demonstrated that they are likely to be sufficiently relevant…

3. The objectors cannot validly assert that the wife is fishing by the terms of the subpoena.  She has clearly articulated her concerns in relation to the intermingling of the affairs and conduct of the husband’s business and that of his parents.  Her case theory is clear.  She is supported in her concerns by no less objective source than the single expert charged with the valuation of the husband’s business.

4. I must accept the assertion on behalf of the objectors that a large volume of material will be caught by the terms of the subpoena.  However, I do not consider the schedule of the subpoena to be oppressively broad or speculative and therefore the volume required to be produced is immaterial.  I am satisfied that there is a legitimate forensic purpose to the material sought and that it is for the purpose of assisting the wife to support a case which has already been articulated as opposed to investigating whether or not there is a case.

5. Therefore the subpoena is not a “fishing expedition” and on this basis I do not find it appropriate to set it aside.

Conclusion

1. The objection will be dismissed.

2. The subpoena to L Pty Limited sought the production of the following documents:

   1.A copy of this subpoena.

   2.All company tax returns, notice of assessments, receipts, reports, business transactional receipts and business tax returns, profit and loss statements, balance sheets, financial statements, trust account statements, trust ledgers, journals raised, Trust Deeds and BAS documentation concerning M Pty Limited (ACN ...) for the period 1 May 2017 to present.

   3.A copy of all inventory inclusive of motor vehicles, trailers and equipment acquired, disposed of, leased, financed by or on behalf of M Pty Limited (ACN ...) for the period 1 May 2017 to present.

   4.All contracts, memorandums, business transactional receipts, loan agreements, tax invoices, cheques payable or received which concern any transactions or payments exchanged between:-

   (a)M Pty Limited (ACN ...) and Mr Vissell, born in 1979;

   (b)M Pty Limited (ACN ...) and Mr Q Vissell, born in 1944;

   (c)M Pty Limited (ACN ...) and Ms R Vissell, born in 1954;

   (d)M Pty Limited (ACN ...) and T Pty Ltd (ACN …) trading as D Pty Ltd;

   (e)M Pty Limited (ACN ...) and CC Pty Ltd (ACN …);

   (f)M Pty Limited (ACN ...) L Pty Limited (ABN ...);

   (g)M Pty Limited (ACN ...) and S Pty Ltd (ACN …);

   (h)M Pty Limited (ACN ...) and P Pty Ltd ACN …;

   For the period 1 May 2017 to present.

3. The objectors objected to the production of the documents named in paragraphs 2, 3 and 4 above.

Conclusion

1. The objections to this subpoena were in similar terms to those in relation to the subpoena to L Pty Limited.  My conclusions is the same and the objection will be dismissed.

2. The subpoena to CC Pty Ltd sought the production of the following:

   1.A copy of this subpoena.

   2.A copy of the D Pty Ltd Trust Deed.

   3.A copy of any Deeds of Variation to the D Pty Ltd Trust Deed.

   4.All company tax returns, notice of assessments, receipts, reports, business transactional receipts and business tax returns, profit and loss statements, balance sheets, financial statements, trust account statements, trust ledgers, journals raised, and BAS documentation concerning CC Pty Ltd (ACN …) for the period 24 May 2017 to present.

   5.A copy of all inventory inclusive of motor vehicles, trailers and equipment acquired, disposed of, leased, financed by or on behalf of CC Pty Ltd (ACN …) for the period 24 May 2017 to present.

   6.All contracts, memorandums, business transactional receipts, loan agreements tax invoices, cheques payable or received which concern any transactions or payments exchanged between:-

   (a)CC Pty Ltd (ACN …) and Mr Vissell, born in 1979;

   (b)CC Pty Ltd (ACN …) and Mr Q Vissell, born in 1944;

   (c)CC Pty Ltd (ACN …) and Ms R Vissell, born in 1954;

   (d)CC Pty Ltd (ACN …) and T Pty Ltd (ACN …) trading as D Pty Ltd;

   (e)CC Pty Ltd (ACN …) and L Pty Limited (ABN ...);

   (f)CC Pty Ltd (ACN …) and M Pty Limited (ACN ...);

   (g)CC Pty Ltd (ACN …) and S Pty Ltd (ACN …);

   (h)CC Pty Ltd (ACN …) and P Pty Ltd …;

   For the period 24 May 2017 to present.

3. The objectors objected to paragraphs 6(b), (c), (e) and (f) of the subpoena and the details provided on the relevant Notice of Objection are as follows:

   1.I object to paragraphs 6(b), (c), (e) and (f) of the Subpoena.

   2.The documents sought by paragraphs 6(b), (c), (e) and (f) are irrelevant, a fishing exercise, and or concern confidential business records of my business where production/disclosure will compromise my commercial and business interests.

   3.I am not named as a third party, nor is there any pleading which makes my records a relevant fact or matter in contest in the proceedings.

4. Further details provided in the Outline of Case document propose similar reasons to those for the objections to the two subpoenas to L Pty Limited above.  It is submitted that the subpoena be set aside because “…it imposes an onerous task on a stranger [to the litigation] to collect and produce documents many of which have no relevance to the litigation”.[5]

   [5]National Employers Mutual General Association Limited v Waind & Hill [1978] 1 NSWLR 372 at 382.

Conclusion

1. Although the objection to this subpoena is in more limited terms, the objections are similar to those in relation to the subpoena to L Pty Limited.  My conclusions is the same and the objection will be dismissed.

2. The remaining subpoenas are addressed to clients and associated entities of the objectors.

3. The subpoena to P Pty Ltd sought the production of the following:

   1.A copy of this subpoena.

   2.All contracts, tax invoices, receipts, cheques payable or received, payments, memorandums and notes exchanged between P Pty Ltd and Mr Vissell, born in 1979 for the period 1 January 2015 to present date.

   3.All contracts, tax invoices, receipts, cheques payable or received, payments, memorandums and notes exchanged between P Pty Ltd and T Pty Ltd (ACN …) trading as D Pty Ltd, for the period 1 January 2015 to present.

   4.All contracts, tax invoices, receipts, cheques payable or received, payments, memorandums and notes exchanged between P Pty Ltd and L Pty Limited (ABN ...) for the period 1 January 2015 to present.

   5.All contracts, tax invoices, receipts, cheques payable or received, payments, memorandums and notes exchanged between P Pty Ltd and M Pty Limited (ACN ...) for the period 1 May 2017 to present.

   6.All contracts, tax invoices, receipts, cheques payable or received, payments, memorandums and notes exchanged between P Pty Ltd and CC Pty Ltd (ACN …) for the period 24 April 2017 to present.

4. The objectors objected to paragraphs 4 and 5 of the subpoena and the details of the objection are as follows:

   1.I object to paragraphs 4 and 5 of the Subpoena.

   2.The documents sought by paragraphs 4 and 5 are irrelevant, a fishing exercise, and or concern confidential business records of my business where production/disclosure will compromise my commercial and business interests.

   3.I am not named as a third party, nor is there any pleading which makes my records a relevant fact or matter in contest in the proceedings.

Conclusion

1. Here the objection relates to a customer of the businesses and only to documents relating to two of the objector entities.  The expert has highlighted a concern about non-commercial dealings and the appearance of shifting profit associated with work for Coles from the husband’s company to one of the objectors.  Of course all of this is done at a preliminary stage but one can see a connection between the records and issues relevant to the wife’s case.

2. As to concerns about oppression or privacy, those matters are not raised by the addressee of the subpoena.

3. The objection will be dismissed.

4. The subpoena to Ms V of S Pty Ltd sought the production of the following:

   1.A copy of this subpoena.

   2.All contracts, tax invoices, receipts, cheques payable or received, payments, memorandums and notes exchanged between S Pty Ltd and Mr Vissell, born in 1979 for the period 1 January 2015 to present date.

   3.All contracts, tax invoices, receipts, cheques payable or received, payments, memorandums and notes exchanged between S Pty Ltd and T Pty Ltd (ACN …) trading as D Pty Ltd, for the period 1 January 2015 to present.

   4.All contracts, tax invoices, receipts, cheques payable or received, payments, memorandums and notes exchanged between S Pty Ltd and L Pty Limited (ABN ...) for the period 1 January 2015 to present.

   5.All contracts, tax invoices, receipts, cheques payable or received, payments, memorandums and notes exchanged between S Pty Ltd and M Pty Limited (ACN ...) for the period 1 January 2015 to present.

   6.All contracts, tax invoices, receipts, cheques payable or received, payments, memorandums and notes exchanged between S Pty Ltd and CC Pty Ltd (ACN …) for the period 1 January 2015 to present.

5. The objectors objected to paragraphs 4 and 5 of the subpoena and the details of the objection as outlined in the relevant Notice of Objection are as follows:

   1.I object to paragraphs 4 and 5 of the Subpoena.

   2.The documents sought by paragraphs 4 and 5 are irrelevant, a fishing exercise, and or concern confidential business records of my business where production/disclosure will compromise my commercial and business interests.

   3.I am not named as a third party, nor is there any pleading which makes my records a relevant fact or matter in contest in the proceedings.

6. Again the objectors assert a failure on the part of the wife to establish the apparent relevance of the subpoena to the proceedings that are before the Court.

Conclusion

1. Here the objection relates to a service or associated entity and only to documents relating to two of the objector entities.  I adopt without repeating what I said in relation to the other subpoenas.  Again there are no concerns about oppression or privacy raised by the addressee of the subpoena.

2. The objection will be dismissed.

3. The subpoena to W Pty Ltd sought that the following be produced:

   1.A copy of this subpoena.

   2.All individual tax returns, notice of assessments, receipts, reports, business transactional receipts and business tax returns concerning Mr Vissell, born in 1979, for the period 3 May 2017 to present.

   3.All company tax returns, notice of assessments, receipts, reports, business transactional receipts and business tax returns, profit and loss statements, balance sheets, financial statements, trust account statements, trust ledgers, journals raised, MYOB accounting data files and BAS documentation concerning T Pty Ltd (ACN …) trading as D Pty Ltd, for the period 3 May 2017 to present.

   4.All company tax returns, notice of assessments, profit and loss statements, balance sheets, financial statements, trust account statements, trust ledgers, journals raised, MYOB accounting data files and BAS documentation concerning L Pty Limited (ABN ...) for the period 3 May 2017 to present.

   5.All company tax returns, notice of assessments, receipts, reports, business transactional receipts and business tax returns, profit and loss statements, balance sheets, financial statements, trust account statements, trust ledgers, journals raised, MYOB accounting data files and BAS documentation concerning M Pty Limited (ACN ...) for the period 3 May 2017 to present.

   6.All company tax returns, notice of assessments, receipts, reports, business transactional receipts and business tax returns, profit and loss statements, balance sheets, financial statements, trust account statements, trust ledgers, journals raised, Trust Deeds, MYOB accounting data files and BAS documentation concerning CC Pty Ltd (ACN …) for the period 3 May 2017 to present.

   7.All contracts, memorandums, business transactional receipts, loan agreements, tax invoices, cheques payable or received which concern any transactions or payments exchanged between:-

   (a)T Pty Ltd (ACN …) trading as D Pty Ltd and L Pty Limited (ABN ...) for the period 3 May 2017 to present.

   (b)T Pty Ltd (ACN …) trading as D Pty Ltd and M Pty Limited (ACN ...)for the period 3 May 2017 to present.

   (c)T Pty Ltd (ACN …) trading as D Pty Ltd and CC Pty Ltd (ACN …) for the period 3 May 2017 to present.

   (d)T Pty Ltd (ACN …) trading as D Pty Ltd and S Pty Ltd (ACN …) for the period 3 May 2017 to present.

   (e)T Pty Ltd (ACN …) trading as D Pty Ltd and P Pty Ltd ACN … for the period 3 May 2017 to present.

4. The objectors objected to paragraphs 4, 5 and 7(b) above.

Conclusion

1. Here the objection relates to a service or associated entity and only to documents relating to two of the objector entities.  I adopt without repeating what I said in relation to the other subpoenas.  Again there are no concerns about oppression or privacy raised by the addressee of the subpoena.

2. The objection will be dismissed.

3. The subpoena to J Pty Ltd sought that the following documents be produced:

   1.A copy of this subpoena.

   2.All individual tax returns, notice of assessments, receipts, reports, business transactional receipts and business tax returns concerning Mr Vissell, born in 1979, for the period 1 January 2015 to 3 May 2017.

   3.All company tax returns, notice of assessments, receipts, reports, business transactional receipts and business tax returns, profit and loss statements, balance sheets, financial statements, trust account statements, trust ledgers, journals raised, MYOB accounting data files and BAS documentation concerning T Pty Ltd (ACN …) trading as D Pty Ltd, for the period 1 January 2015 to 3 May 2017.

   4.All company tax returns, notice of assessments, profit and loss statements, balance sheets, financial statements, trust account statements, trust ledgers, journals raised, MYOB accounting data files and BAS documentation concerning L Pty Limited (ABN ...) for the period 1 January 2015 to 3 May 2017.

   5.All company tax returns, notice of assessments, receipts, reports, business transactional receipts and business tax returns, profit and loss statements, balance sheets, financial statements, trust account statements, trust ledgers, journals raised, MYOB accounting data files and BAS documentation concerning M Pty Limited (ACN ...) for the period 1 January 2015 to 3 May 2017.

   6.All company tax returns, notice of assessments, receipts, reports, business transactional receipts and business tax returns, profit and loss statements, balance sheets, financial statements, trust account statements, trust ledgers, journals raised, Trust Deeds, MYOB accounting data files and BAS documentation concerning CC Pty Ltd (ACN …) for the period 1 January 2015 to 3 May 2017.

   7.All contracts, memorandums, business transactional receipts, loan agreements, tax invoices, cheques payable or received which concern any transactions or payments exchanged between:-

   (a)T Pty Ltd (ACN …) trading as D Pty Ltd and L Pty Limited (ABN ...) for the period 1 January 2015 to 3 May 2017.

   (b)T Pty Ltd (ACN …) trading as D Pty Ltd and M Pty Limited (ACN ...)for the period 1 January 2015 to 3 May 2017.

   (c)T Pty Ltd (ACN …) trading as D Pty Ltd and CC Pty Ltd (ACN … for the period 1 January 2015 to 3 May 2017.

   (d)T Pty Ltd (ACN …) trading as D Pty Ltd and S Pty Ltd (ACN …) for the period 1 January 2015 to 3 May 2017.

   (e)T Pty Ltd (ACN …) trading as D Pty Ltd and P Pty Ltd ACN … for the period 1 January 2015 to 3 May 2017.

4. The objectors objected to paragraphs 4, 5 and 7(b) of the schedule above.

5. The relevant Notices of Objection for this subpoena and the subpoena issued to Strategic Accounting Advisers both contained the following further information:

   1.The documents sought by [the relevant paragraphs] are irrelevant, a fishing exercise, and or concern confidential business records of my business where production/disclosure will compromise my commercial and business interests.

   2.I am not named as a third party, nor is there any pleading which makes my records a relevant fact or matter in contest in the proceedings.

6. Once again, the further submissions on behalf of the objectors point to a lack of relevance on the basis that neither the husband nor the wife have any interests in the entities referred to in those paragraphs and that no orders are sought against them for final relief.  It is asserted that voluminous material would need to be produced in answer to the subpoena and the commercial confidentiality of the objectors would be compromised.

Conclusion

1. Here the objection relates to a professional providing accounting services but only to documents relating to two of the objector entities.  I adopt without repeating what I said in relation to the other subpoenas.  Again there are no concerns about oppression or privacy raised by the addressee of the subpoena.

2. The objection will be dismissed.

3. Finally, the subpoena to K Organisation sought that the following documents be produced:

   1.A copy of this subpoena.

   2.A copy of all application  for registration forms, registration renewal forms, registration renewal receipts, ownership details, completed application for transfer of ownership forms, transfer fee forms, notice of disposal forms, green slips, pink slips, blue slips, road worthiness reports, inspection reports and photographs that you hold in relation to motor vehicles concerning:

   (a)Mr Vissell, born in 1979;

   (b)T Pty Ltd (ACN …) trading as D Pty Ltd;

   (c)L Pty Limited (ABN ...);

   (d)M Pty Limited (ACN ...); and

   (e)CC Pty Ltd (ACN)

   For the period of 1 January 2016 until present date.

4. The objectors objected to paragraphs 2(c) and 2(d) of the subpoena and the relevant Notice of Objection states as follows:

   1.I object to paragraphs 2(c) and 2(d) of the Subpoena.

   2.The documents sought by paragraphs 2(c) and 2(d) are irrelevant, a fishing exercise, and or concern confidential business records of my business where production/disclosure will compromise my commercial and business interests.

   3.I am not named as a third party, nor is there any pleading which makes my records a relevant fact or matter in contest in the proceedings.

1. The objectors further assert that this subpoena is an undue trespass on their privacy insofar as it relates to motor vehicles belonging to entities which are not the subject of the proceedings before the Court.

Conclusion

1. Here the objection relates to a government agency and only to documents relating to two of the objector entities.  I adopt without repeating what I said in relation to the other subpoenas.  Again there are no concerns about oppression or privacy raised by the addressee of the subpoena.

2. The objection will be dismissed.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 30 September 2019.

Associate: 

Date:  30 September 2019