Vissell & Vissell

Case [2021] FamCAFC 76

FAMILY COURT OF AUSTRALIA

Vissell & Vissell [2021] FamCAFC 76

Appeal from: Vissell & Vissell [2019] FamCA 697
Appeal number(s): EAA 122 of 2019
File number(s): SYC 2224 of 2018
Judgment of: AINSLIE-WALLACE, WATTS & TREE JJ
Date of judgment: 18 May 2021
Catchwords: FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Subpoena – Appeal against dismissal of objections to subpoenas – Relevance – Legitimate forensic purpose – On the cards – Appeal allowed – Re-exercise of discretion – Leave granted to extend time to review the registrar’s decision to dismiss objections – Where compliance with subpoenas would be oppressive – Subpoenas set aside – Second respondent to pay the appellants’ costs.
Legislation:

Family Law Amendment (Powers Delegated to Registrars) Rules 2020 (Cth) r 25

Family Law Rules 2004 (Cth) Sch 3, rr 1.04, 1.12, 1.14, 11.02, 18.08

Cases cited:

Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85

Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667

Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9

Colburn & Cleese (2020) FLC 93-995; [2020] FamCAFC 278

Commissioner for Railways v Small (1938) 38 SR (NSW) 564

Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-038; [2000] FamCA 892

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372

R v Saleam [1999] NSWCCA 86

Sadek and Ors & Hall and Anor (2015) FLC 93-634; [2015] FamCAFC 23
Division: Appeal Division
Number of paragraphs: 111
Date of hearing: 17 February 2021
Place: Sydney
Counsel for the Appellants: Mr Fernon SC
Solicitor for the Appellants: Yates Beaggi Lawyers
Solicitor for the First Respondent: Not participating in the appeal
Counsel for the Second Respondent: Mr Livingstone
Solicitor for the Second Respondent: Marsdens Law Group

ORDERS

EAA 122 of 2019
SYC 2224 of 2018

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MS R VISSELL

First Appellant

MR Q VISSELL

Second Appellant

L PTY LIMITED

Third Appellant

(and others named in the Schedule)
AND:

MR VISSELL

First Respondent

MS VISSELL

Second Respondent

ORDER MADE BY:

AINSLIE-WALLACE, WATTS & TREE JJ

DATE OF ORDER:

18 MAY 2021

THE COURT ORDERS THAT:

1.Leave be granted to appeal from an order of a judge of the Family Court of Australia made on 30 September 2019, the appeal be allowed and that order be set aside.

2.The second respondent is to pay the costs of the first to fifth appellants fixed in the sum of $37,292.54, such costs to be paid within twenty-eight (28) days of the date of this order.

3.Leave is granted to the first to fifth appellants pursuant to r 1.14 and r 18.08 of the Family Law Rules 2004 (Cth) to seek a review of the order made on 4 July 2019 notwithstanding that the time for seeking the review has expired.

4.The Application in an Appeal filed 16 July 2020 is allowed.

5.The following subpoenas issued on 23…

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AGLC
Vissell & Vissell [2021] FamCAFC 76
Case
[2021] FamCAFC 76
Decision Date

CaseChat Overview and Summary

The appeal in Vissell & Vissell was brought by the objectors to a set of subpoenas issued in a family law proceeding in the Family Court. The subpoenas, directed at various companies and individuals, sought the production of a wide array of documents. The objectors challenged the subpoenas on the grounds of relevance and oppressiveness, arguing that the documents sought were not pertinent to the issues in the case and that compliance with the subpoenas would be overly burdensome. The Family Court initially dismissed the objections, a decision which the objectors sought to appeal.

The legal issues at the heart of the appeal revolved around the scope and limitations of subpoenas in family law matters, specifically whether the subpoenas were relevant to the case and whether they were oppressive. The objectors argued that the subpoenas were overly broad, seeking documents that had no bearing on the issues at hand, and that complying with them would cause significant hardship. The court had to determine whether the subpoenas were justified under the relevant legal principles and whether the objections were properly dismissed.

The Court of Appeal allowed the appeal, setting aside the subpoenas and granting leave for the objectors to seek a review of the registrar's decision. The court found that the subpoenas were indeed too broad and not sufficiently relevant to the issues in the case, and that compliance with them would have been oppressive. The court emphasized the need for subpoenas to be narrowly tailored to the issues at hand and not used as a tool for "fishing" or discovery. The second respondent was ordered to pay the objectors' costs.

The court's decision underscores the importance of ensuring that subpoenas in family law cases are relevant and not oppressive. The ruling highlights the need for a careful consideration of the scope of subpoenas to avoid unnecessary hardship on parties who are not directly involved in the litigation.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. Leave be granted to appeal from an order of a judge of the Family Court of Australia made on 30 September 2019, the appeal be allowed and that order be set aside.

2. The second respondent is to pay the costs of the first to fifth appellants fixed in the sum of $37,292.54, such costs to be paid within twenty-eight (28) days of the date of this order.

3. Leave is granted to the first to fifth appellants pursuant to r 1.14 and r 18.08 of the Family Law Rules 2004 (Cth) to seek a review of the order made on 4 July 2019 notwithstanding that the time for seeking the review has expired.

4. The Application in an Appeal filed 16 July 2020 is allowed.

5. The following subpoenas issued on 23 May 2019 are set aside:

(a) L Pty Limited;

(b) M Pty Limited;

(c) CC Pty Ltd;

(d) N Pty Ltd; and

(e) J Pty 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

First, an extension of time must be granted to allow the objectors to seek the review of the registrar’s decision.Application to adduce further evidence On 16 July 2020 the objectors filed an Application in an Appeal to adduce further evidence being an affidavit of the objectors’ solicitor in the event that the appeal succeeded and the Court re-exercised the primary judge’s discretion. The affidavit explains the delay in filing the application to review the registrar’s decision. We will grant leave for this evidence to be adduced on the re-exercise. In any event, the wife agreed that should this Court re-exercise the discretion, then there should be an extension of time. Having regard to the circumstances leading to the delay as referred to in the affidavit of Ms BB,[8] we are of the view that there should be an extension of time in which to bring the review of the registrar’s order.[8] Ms BB’s affidavit filed 16 July 2019. Before passing to a consideration of the subpoenas, it is useful to set out the law which will frame our consideration.The law There can be no doubt that subpoenas to produce documents may be addressed to strangers to the litigation, however their interests are subject to protections which have long been established in the law and the touchstone of which is the relevance of the documents sought to the issues in the cause. As long ago as 1938 in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 (“Small’s case”), Jordan CJ said at 573:A writ of subpoena duces tecum may be addressed to a stranger to the cause or to a party. If it be addressed to a stranger, it must specify with reasonable particularity the documents which are require to be produced… It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery… His Honour continued and, albeit in the context of discussing subpoenas directed to the parties to the cause, said at 575:… a party is no more entitled to use a subpoena duces tecum than he is a summons for interrogatories, for the purpose of “fishing”, i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all… Even if the documents are specified, a subpoena to a party will be set aside as abusive if great numbers of documents are called for and it appears that they are not sufficiently relevant. Many years later in National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 (“Waind”), Moffitt P considered the use of subpoenas to third parties as “discovery” and after referring to Small’s case, said at 382:… Of course it may be that the terms of a subpoena are so wide that it is oppressive, but this is not because it is used for “discovery” in the sense used in Small’s case and Burchard’s case, but because it imposes an onerous task on a stranger to collect and produce documents many of which can have no relevance to the litigation…(Footnotes omitted)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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