FAMILY LAW - SUBPOENAE - objections based on width, oppression, fishing, vexatious and abuse of process upheld - subpoenae struck out.

Family Law Act 1975 (Cth) ss 79, 80, 95, 96(2), 106B

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 8.14, 8.15(1)(d), 8.15(3)(d), 8.16(1)(a), 8.18(1), 18.01(1)(a)

Anikin v Sierra [2004] HCA 64; (2004) 79 ALJR 452

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337

Barnes v Addy [1874] UKLawRpCh 20; (1874) LR 9 Ch App 244

Baumann & Rushbrooke [2016] FamCA 905

Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1

Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253

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

Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588

Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155

Goreshter & Goreshter (No 2) [2024] FedCFamC1F 306

Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470

Kayce & Wilda [2023] FedCFamC1F 1140

Lang v The Queen [2023] HCA 29; (2023) 278 CLR 323

Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Secretary of the Department of Planning, Industry & Environment v Blacktown City Council [2021] NSWCA 145

Seldon & Seldon [2020] FamCA 762

Sun & Yeng (No 5) [2024] FedCFamC1F 702

Vissell & Vissell [2021] FamCAFC 76

Woodcock v Woodcock [2021] FedCFamC1F 88; (2021) 64 Fam LR 489

Woodcock & Woodcock (No 6) [2024] FedFamC1F 333

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

D PTY LTD AS TRUSTEE FOR RAINER FAMILY TRUST NO 6

C1 PTY LTD AS TRUSTEE FOR RAINER FAMILY TRUST NO 8

C2 PTY LTD AS TRUSTEE FOR RAINER FAMILY TRUST NO 10

E PTY LTD AS TRUSTEE FOR RAINER FAMILY TRUST NO 12

F1 PTY LTD AS TRUSTEE FOR RAINER FAMILY TRUST NO 13

1. The whole of the affidavit of Mr Lopez made 24 March 2025 is struck out.
2. I uphold the objections in each notice of objection dated 7 March 2025 in relation to the subpoena directed to U Inc., Australia and New Zealand Banking Group Ltd, V Pty Ltd, Commonwealth Bank of Australia, Westpac Banking Corporation, W Pty Ltd and National Australia Bank Ltd.
3. Each subpoena directed to each bank or financial institution listed in paragraph 2 of these orders is set aside.
4. The objections dated 20 March 2025 and 25 March 2025 to the subpoena issued against B Pty Ltd dated 20 March 2025 are upheld.
5. The subpoena to B Pty Ltd dated 20 March 2025 is set aside.
6. By Monday, 7 April 2025 all parties file written submissions as to costs of the contested interlocutory hearing listed on 27 and 31 March 2025.
7. This proceeding is fixed for contested interlocutory hearing on Tuesday, 15 April 2025 at 10.00am to hear debate on costs of the contested interlocutory hearing on 27 and 31 March 2025.

1. The husband's lawyer, Josephine Sergi of Kalus Kenny Intelex be and is hereby released from the undertakings filed with the court registry on 14 November 2024 and 22 November 2024.

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 Rainer & Lopez has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The trial of this proceeding was fixed for 19 May 2025, a little over six weeks from now.
2. On 2 December 2024 when this case was called over by the Chief Justice, the husband's legal representatives enthusiastically embraced the suggestion made by the Chief Justice to fix the case for trial, there being no outstanding interlocutory steps remaining.
3. Upon the proceeding being transferred to my docket on 2 December 2025 I conducted a directions hearing three days later on 5 December 2024. Orders were made by consent for trial affidavits to be filed and for steps to be done in readiness of a trial to be commenced on 19 May 2025. The case was entered in the Major Complex Financial Proceedings List. That trial date was later moved by the court by reason of a clash with other court commitments. The new trial date is now 26 May 2025.
4. On 12 March 2025 the parties in this litigation and various other interested parties appeared before me in respect of an application concerning several subpoenae. Factual material said to ground a claim to legal professional privilege rendering certain documents sought by subpoenae immune from production had not then been the subject of affidavit evidence so I made orders for the filing and service of affidavits and written submissions and otherwise adjourned the further hearing of debate concerning the subpoenae until 27 March 2025.

1. On 27 and 31 March 2025 several applications were debated before me. Those were -

(a) whether the whole or part of the affidavit of Josephine Marylin Sergi made 2 December 2024 should be struck out under rule 8.18(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ("the court rules"), concerning inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative material;

(b) whether the affidavit of Mr Lopez made 24 March 2025 should be struck out in whole or in part in reliance upon rule 8.18(1) of the court rules for containing inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative material;

(c) whether any and if so what admissible evidence was before the court by which the court could ascertain that each subpoena had a legitimate forensic purpose within the contemplation of authorities surveyed by me in Woodcock v Woodcock;[1]

(d) having regard to the fact that no pleadings exist in this proceeding whether the "apparently relevant" test was satisfied in the circumstances of this case by measuring apparent relevance against the issues recorded by one of the parties for the compliance hearing conducted by the Chief Justice on 2 December 2024;

(e) whether one or more subpoenae issued by the husband suffered from defects of form or substance rendering one or more of them objectionable and liable to be set aside; and

(f) whether paragraphs 1, 2, 3 and 4 of the application in a proceeding filed by the husband dated 17 March 2025 should be granted which application was opposed by the wife and opposed by the parties compendiously called "the subpoenaed entities".[2]

1. On 27 and 31 March 2025 Mr L. Glick KC and Mr Sweeney of counsel represented the wife, Mr M. Wilson of counsel represented the husband, Ms Exell of counsel represented B Pty Ltd entities and Mr C. Shaw KC represented the subpoenaed entities.

1. Mr Glick KC opened the debate on 27 March 2025 by submitting that no admissible evidence was before the court in support of any application for orders sought by the husband. Mr Glick submitted that it was impossible to divine from the husband's affidavit made 24 March 2025 or from the affidavit of Ms Josephine Sergi made 7 March 2025 what the factual setting was against which the husband issued the subpoenae earlier in March of this year. The relevant subpoenae were directed to the following -

(a) U Inc. with a notice of objection by the wife dated 7 March 2025;

(b) Australia and New Zealand Banking Group Ltd with notice of objection by the wife dated 7 March 2025;

(c) V Pty Ltd with notice of objection from the wife dated 7 March 2025;

(d) Commonwealth Bank of Australia with the wife's 7 March 2025 notice of objection;

(e) Westpac Banking Corporation with the wife's 7 March 2025 notice of objection;

(f) B Pty Ltd with the wife's 7 March 2025 notice of objection;[3]

(g) W Pty Ltd with the wife's 20 March 2025 notice of objection;

(h) National Australia Bank Ltd with the wife's 20 March 2025 notice of objection;

(i) B Pty Ltd with the wife's 20 March 2025 notice of objection;

(j) B Pty Ltd (returnable on 4 April 2025) with the wife's 25 March 2025 notice of objection; and

(k) B Pty Ltd with the wife's 25 March 2025 notice of objection.

1. With that long narration it became immediately apparent soon after Mr Glick opened that the arena of debate before me went vastly beyond the adequacy of the husband's affidavit made 24 March 2025 and beyond Ms Sergi's 7 March 2025 affidavit. It was abundantly plain that each of the very many subpoenae issued by the husband were the subject of notices of objection by the wife and others. In respect of certain subpoenae, the interested parties were objecting and in relation to other subpoenae addressed to entities connected to B Pty Ltd, separate grounds of objections were being pressed. Not all interests were identical among the objectors.
2. It seemed to me to be critical to fully understand the husband's purpose in issuing so many subpoenae directed to such a wide and diverse range of recipients. I asked Mr Wilson to provide a non-contentious opening against which this dispute over documentary production was set.
3. As has already been mentioned, this proceeding did not involve pleadings. It was commenced by conventional means in cases in Division 2 with the filing of an initiating application setting out the orders sought by the applicant and with a response setting out the orders sought by the respondent. Various amendments have been made. Mr Wilson told me in answer to my question about the reasoning behind the very recent activity with subpoenae, that the husband has formed the view based on information provided to him by his solicitor, that certain intercompany loans have been forgiven commensurately diminishing the value of assets to which the loans applied. Mr Wilson said the husband wants to obtain all source documents in response to the various subpoenae issued to financial institutions so that he can ascertain whether the wife was involved in or directed such loan forgiveness because that was pivotal to the husband's contentions that the wife was in effective control of a variety of companies and trusts which have been identified as being owned or directed by the wife's parents. I asked how the documents sought by subpoenae will serve to advance a contention of mixed fact and law, namely that the wife is in effective control of her family's companies and trusts. Mr Wilson said he wishes to obtain the documents then to submit them for the consideration of an adversarial witness, an accountant, who will be asked to express an opinion about whether, upon reading the documents produced in response to subpoenae, they demonstrate that the wife is in effective control of the companies within her family's group of companies. I asked Mr Wilson whether he would be submitting that the relevant companies were the alter ego of the wife, in the manner essayed by the High Court in Ascot Investments Pty Ltd v Harper.[4] Mr Wilson submitted that no relief will be sought on point even if the adversarial witness gives evidence to the effect that the wife was the alter ego of the companies within her family's group of companies. Mr Wilson submitted that as between one another, the husband and wife have struck an arrangement on how to address in this s 79 application any finding to the effect that the wife is the alter ego of the companies in her family's group of companies. No remedy grounded in s 106B would be sought, he said.
4. Since the decision of the High Court in Stanford v Stanford[5] in any s 79 application the important issue is the ascertainment of facts such that the court can determine the parties' existing legal and equitable interests in property of the parties to the marriage. It seemed to me that the exercise of obtaining documents from production in response to one or more subpoenae, where no consequential relief was sought, was likely to amount to a purposeless enquiry.
5. Mr Wilson joined issue with me in respect of the records which financial institutions will be asked to produce. Mr Wilson gave as an example bank statements which showed a large credit entry one day then the very next day that sum having been transferred out of the account. I pointed out to Mr Wilson that bank statements ordinarily do not record the name of the person effecting the electronic movement of funds into and out of accounts so if the whole basis of his clients' quest for subpoenaed documents was the revelation of the identity of the person actually moving funds into and out of accounts such search will be forlorn because bank statements do not usually retain information about who is operating the account when moving funds into and out of the accounts. But in any event, no purpose was to be achieved because no claim to s 106B remedies being invoked.
6. Mr Glick then moved to advancing a systemic assault on the whole of the husband's 24 March 2025 affidavit. By way of overview, Mr Glick made a collection of preliminary submissions in respect of affidavits under part 8.3 of the court rules. Among those preliminary submissions were the following -

(a) under rule 8.15(1)(d) an affidavit must bear the name of the person who prepared the affidavit;[6]

(b) under rule 8.15(3)(d) an affidavit must not be accepted in the proceeding unless and until it is tendered in evidence at the hearing of the application and accepted into evidence by the court;[7]

(c) under rule 8.16(1)(a) an affidavit must be confined to facts about the issues in dispute;[8]

(d) under rule 8.18(1)(a) the court may order material to be struck out of an affidavit at any stage in a proceeding if the material is inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative; and

(e) under rule 8.14 of the court rules, an affidavit filed with an application may be relied on for the purpose of an application for which it has been filed.

1. Mr Glick KC submitted that the affidavits prepared for the compliance hearing conducted by the Chief Justice on 2 December 2024 could not be used on this application before me by force of the operation of rule 8.14 of the court rules.
2. I asked Mr Wilson what the purpose was of his client's 24 March 2025 affidavit. He said it provided evidence of matters which he said rendered the documents sought in the subpoenae apparently relevant and therefore the subpoenae were possessed of a legitimate forensic purpose. I put to Mr Wilson that the search for a legitimate forensic purpose for documents sought by subpoenae is thoroughly circuitous. In other words, if a deponent in an affidavit deposed to matters having no relevance to statutory issues germane to orders under s 79 of the Family Law Act or to related sections such as s 80 or s 106B, one might fairly wonder what the legitimate forensic purpose is to the affidavit or to the documents production of which is being sought by subpoena. Here, no relief under s 106B was presently sought nor is it proposed.
3. In paragraph 12 of the written submissions of counsel for the wife, Mr Glick KC and Mr Sweeney of counsel wrote that it appeared that the husband issued subpoenae "to trawl for a wide sweep of documents in order to see whether those documents disclose anything of use to the husband." Before going to the precise terms of the husband's 24 March 2025 affidavit, it is necessary to record certain submissions advanced on behalf of the wife in relation to the events during the parties' appearance before the Chief Justice on 2 December 2024. In no special order of importance, counsel for the wife submitted -

(a) the court event on 2 December 2024 was a compliance and readiness hearing at which the husband was represented by the same counsel who appeared before me on this application, namely Mr M. Wilson of counsel;

(b) by reason of the then recent change of solicitors, the husband's counsel submitted that his new solicitors needed time to, among other things, examine certain documents that had been produced in response to one or more subpoenae;[9]

(c) the Chief Justice informed the husband's counsel that the Chief Justice wanted "to get on with this case";

(d) at no stage did the husband's counsel foreshadow any application or need to issue further subpoenae;

(e) Mr Wilson answered the Chief Justice's question about how long the husband's representatives needed to get on top of this case, "a matter of weeks";[10]

(f) the Chief Justice's informed all parties that if the case was transferred into my docket "it's going to be transferred on a turbocharged basis";[11]

(g) the Chief Justice told the parties that this case would be determined as early as possible in 2025; and

(h) three days later, on 5 December 2024 the parties first appeared before me upon the Chief Justice having transferred this proceeding in its entirety to my docket leading to consent trial directions being ordered by me that day.

1. It was abundantly plain from a close examination of the conduct of the compliance and readiness hearing that the Chief Justice directed this case to be dealt with expeditiously once it was transferred to me. Consonant with that imperative I -

(a) conducted a directions hearing three days after the Chief Justice conducted the compliance and readiness hearing; and

(b) fixed the case for trial in May of this year.

1. The documents under consideration when Mr Wilson was before the Chief Justice were the subject of specific deposition by Ms Sergi, the husband's current solicitor, in Ms Sergi's 7 March 2025 affidavit. She made that affidavit in support of the husband's application for her to be released from undertakings given to the court on 14 and 22 November 2024 concerning the release of documents produced in response to various subpoenae. On 24 June 2024 Judicial Registrar McDonald heard and determined objections to subpoenae filed on 30 March 2024. The subpoenaed parties were represented before McDonald JR by Arnold Bloch Liebler and by Mr Charles Shaw KC. According to paragraph 4 of Ms Sergi's 7 March 2025 affidavit, the subpoenae considered by McDonald JR related to entities of which the wife was a director or shareholder "and/or in which she holds an indirect interest" (whatever that meant) seeking production of trust deeds and financial statements for those companies and trusts. By orders made by McDonald JR on 24 June 2024 -

(a) the objections to subpoenae filed by nine objectors were upheld;

(b) leave was given to only the legal representatives of the parties to inspect all trust deeds for which "the company is a trustee"[12] and financial statements from 1 July 2019 to date.

1. In other words, in respect of a tranche of subpoenae issued by the husband on 30 March 2024 (a year ago to the day) the objectors succeeded in relation to nine companies and in respect of the production of other documents limited to the period 1 July 2019 to the present date as well as being limited to trusts of which "the company" is trustee. McDonald JR imposed restrictive restraints on the use to which any documents produced in pursuance of the 24 June 2024 orders could be put resulting in the provision by Ms Sergi of undertakings to the court given on 14 and 22 November 2024.
2. The genesis of the contested interlocutory application that came before me on 27 March and 31 March 2025 was spelled out in Ms Sergi's 7 March 2025 affidavit at paragraph 9. There, Ms Sergi deposed as follows -

"The subpoenaed documents revealed that at or around the time of separation, in numerous companies in which the wife is a 50% shareholder, substantial funds were removed from the balance sheets of those companies. As a result, and to enable the parties to prepare for the final hearing listed on 19 May 2025, orders were made for the parties to obtain expert evidence in relation to those transactions."

1. Importantly, that passage from Ms Sergi's affidavit was relied on by the husband as providing a factual and logical link for the husband to attempt to demonstrate the so-called relevance of the documents sought by subpoenae in the dispute before me, namely -

(a) a 50% shareholding by the wife in certain companies; and

(b) substantial funds having been removed from the balance sheet of those companies.

1. Nowhere did Ms Sergi hint at the legal characterisation on which the husband relied in respect of the asserted movement, even substantial movement, of funds from the balance sheet of a company owned as to 50% by the wife. No suggestion was made that the movement of funds from balance sheets was somehow a breach of a director's duty, or somehow that relief under Barnes v Addy[13] was somehow invoked. In debate with Mr Wilson on 31 March I posited that a management decision could well have been made (by whom was an altogether different matter) that certain historical loans of companies could have been removed for any number of reasons. Those included the following -

(a) management of the relevant company could have formed the view that the relevant transaction was not in fact and in law a "loan" properly so called in the manner canvassed by me in Sun & Yeng (No 5);[14]

(b) management of the relevant company could have formed the view that the loan was unenforceable;

(c) management could have formed the view that the relevant loan was not recoverable; or

(d) management could have formed the view that the loan was statue barred, particularly if the loan was an interest free loan repayable on demand.

1. In debate with Mr Wilson I pointed out that on an interlocutory application such as this it would be most peculiar if the court were to go behind a decision of a company apparently regularly made for a legitimate business purpose, to conclude that some nefarious purpose was behind the decision to remove the relevant loans in the books of the relevant company. It went entirely unexplained how the husband contended that the wife's 50% shareholding in certain companies and movement of funds from the balance sheet of those companies somehow enlivened apparent relevance to an existing s 79 application between the husband and wife and somehow amounted to an irregular, unusual or questionable event warranting investigation by the compulsory production of documents held by financiers, commercial lenders and accountants.

1. The husband relied on his 24 March 2025 affidavit in support of his contentions in relation to his application in a proceeding dated 7 March 2025. He also relied on his 24 March 2025 affidavit in order to make good his assertions of the apparent relevance or the legitimate forensic purpose of the various subpoenae debated before me on 27 and 31 March 2025.
2. It must be remembered that Mr Glick KC characterised the content of the husband's 24 March 2025 affidavit variously by reference to well known concepts developed over centuries in common law courts administering Anglo Australian jurisprudence on discovery. Those concepts included those embedded in rule 8.18(1)(a) pursuant to which the court (me) may order material to be struck out of an affidavit at any stage if the material is inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative. The metes and bounds of the judicial applications of each of those terms was essayed as early as 1885 in Sir Edward Bray's monograph The Principles and Practice of Discovery. Each is very well known to the law. Mr Glick contended in the overall that the contents of the husband's 24 March 2025 affidavit contained so many indefensible illustrations of inadmissibility, want of necessity, immateriality, irrelevance, prolixity, scandalous and argumentative material that the whole of the husband's 24 March 2025 affidavit must be struck out in pursuance of rule 8.18(1)(a) of the court rules. Additionally, Mr Glick KC submitted that the filing of an affidavit in that form contravened the overarching purpose reposed in s 95 of the Family Law Act. Mr Glick KC went further and submitted that by reason of Ms Sergi having prepared the husband's 24 March 2025 affidavit, she too contravened the Family Law Act in respect of the duties reposed in s 96(2) of the Family Law Act.
3. Mr Wilson conceded that his client did not rely on paragraphs 7, 8, 9, 10, 11, 12 and 13 of the husband's 24 March 2025 affidavit. Those concessions were appropriately made. However, they were only made after Mr Glick delivered a blistering assault upon the contents of each of those paragraphs. Mr Wilson's statement that he did not rely on those paragraphs represented, to my mind, his client's obvious recognition that the information in those paragraphs was objectionable for one or more or all of the grounds set out in rule 18.01(1)(a) of the court rules.
4. By reason of Mr Wilson's concessions about paragraphs 7, 8, 9, 10, 11, 12 and 13 of his client's 24 March 2025 affidavit, I strike out those paragraphs in the exercise of rule 18.01(1)(a) of the court rules.
5. Paragraph 14 was narrative, devoid of factual content and therefore it contravened rule 8.16(1)(a) of the court rules. At the very least it was unnecessary. It must be struck out which I now so order.
6. Paragraph 15 addressed F1 Pty Ltd, the operator of a business in Suburb Y, Victoria. The husband asserted that the wife's parents are the directors and equal shareholders of that company. The husband did not state on what information he relied for the conclusion that the wife's parents are the directors and equal shareholders of that company. However, the wife's affidavit made 20 March 2025 deposed to a number of corporate shareholdings. The husband did not exhibit a company search derived from the records of the Australian Securities and Investments Commission as is normally done to disclose details of the ownership and control of a company. Paragraph 15 is therefore inadmissible for being conclusionary in nature. In addition, on his own evidence the husband asserted that F1 Pty Ltd is wholly owned by the wife's parents yet the husband is seeking production of documents in respect of companies owned as to 50% by the wife, which the company mentioned in paragraph 15 is not so held. Further, in paragraph 15 the husband purported to assert that he understood that F1 Pty Ltd is the trustee of Rainer Family Trust No 13 yet he then stated he has no trust deeds for that trust rendering the basis of his understanding about the identity of the trustee purely speculative and therefore inadmissible. The whole of paragraph 15 must be struck out which I now order.
7. Paragraph 16 contains an assertion that the business mentioned in the preceding paragraph 15 (now struck out) is owned by J1 Pty Ltd of which, so the husband said, the wife's father is the director and that D Pty Ltd as trustee for the Rainer Family Trust No 6 is the sole shareholder. The husband produced no documents of any description enabling him to assert the matters he purports to assert in respect of paragraph 16. Ownership of real property is proved by proof of registered proprietorship. No such documentation was proffered here. Directorships in a company is generally proved by ASIC searches, none of which was adduced in respect of paragraph 16. The identity of a trustee of a trust is demonstrated by proof of the trust instrument, none of which was given. That rendered the contents of paragraph 16 opinion evidence. The husband was not qualified to give such opinion evidence. Paragraph 16 offended rule 8.18(1)(b). It was therefore inadmissible and must be struck out under rule 8.18(1) of the court rules which I now do.
8. Paragraphs 17 and 18 were relevant to this application. Further paragraph 17 misstates the terms of the orders of McDonald JR. Precisely how the husband can depose to someone else's mistake then to characterise that mistake as being inadvertent he did not say. Paragraphs 17 and 18 are inadmissible and so must be struck out which I hereby do.
9. Paragraph 19 of the husband's affidavit was inadmissible on two bases at least. The first was speculation about the wife's alleged receipt of what the husband described as direct funds and benefits. Nowhere did the husband set out the facts that led to his assertion that "from the disclosure provided", "it appears" that the wife received not merely funds but "substantial direct funds and benefit". He did not say what documents he examined that enabled him to make the assertions in the first sentence of paragraph 19. Similar observations apply to the second sentence of paragraph 19. Mr Wilson took issue with that point and referred to various bank statements which he said revealed the movement of funds into and out of accounts. When I pointed out to Mr Wilson that those funds transfers may well have been made with authority and in any event the bank statements do not reveal which actual person operated the account at the relevant time corresponding with the relevant movement of funds, he submitted that I could infer that the wife moved funds. He did not provide any authority to support such a contention. It was not arguable. Guessing between two possibilities will never amount to an inference.[15] An inference can only be drawn from established facts. Here, the assertions were not based, and were not stated to be based, on established fact. I decline to draw the inference for which Mr Wilson contended. In my view paragraph 19 was inadmissible for being a conclusion. I strike it out.
10. Paragraph 20 was further speculation. Two noxious aspects of that paragraph were evident. The first was the phrase "in addition to apparently having liberal use of the funds..." and the second was that the wife "was effectively solely running, managing and making decisions" about the Suburb Y business and the land on which that business was operated.
11. To assert that a person has effective sole responsibility for something, here running, managing and making decisions about a business and the land it is on is a conclusion, unsupported by facts on which the conclusion is based and therefore inadmissible. Moreover, to assert that a person has effective sole responsibility is also likely to be a conclusion of law or a mixed matter of fact and law - on either count inadmissible. I strike out paragraph 20 for being inadmissible under rule 8.18(1)(a).
12. Paragraph 21 contains an assertion that in 2018 the Rainer Group (he did not disclose which entities made up that group) was involved in a particular development which involved the other developer asking the wife about using the business as security to which the wife refused. The husband held no role in the management of any Rainer companies. He was not a participant in the conversation to which he purported to depose. He did not even say how he knew of the information he recorded in paragraph 21. It was entirely inadmissible. I strike out that paragraph.
13. Paragraph 22 contained the husband's assertion that the business employed between 16 to 20 employees at any given time. No issue in this case arose about the number of employees at the business. Accordingly, that was irrelevant. Industrial law issues about the wife's control over employees was beyond the scope of operation of the Family Law Act. Whether the wife consulted with anyone in the discharge of her duties in the operation of her business activities was irrelevant to any issue in this s 79 application. Whether and if so to what extent the husband may have assisted the wife in the wife's conduct of her business activities was also irrelevant unless it went to a contribution. The case was not cast on that basis, however. So far as the subparagraphs of paragraph 22 were concerned, the husband did not state the basis on which he was able to depose to those issues. In the absence of his deposing to the basis of his knowledge of the matters in paragraphs 22.1 to 22.9, those matters are inadmissible on the basis that the witness does not give direct knowledge of those matters. The whole of paragraph 22 is inadmissible on that basis. I strike it out.
14. Paragraph 23 purports to introduce an assertion that the husband and wife worked together in a business called Z Company and that the wife directed employees of F1 Pty Ltd to work for Z Company while being paid by F1 Pty Ltd.
15. The husband gave no information about how he had the direct knowledge to depose to those events. He gave no details of the activities that were performed by the relevant employees, the duration, the costs of such work and moreover, how he was able to say that those employees were paid by F1 Pty Ltd. He did not depose to having any role with that company. He deposed to operating a business called Z Company but he did not state that he was a co-owner of it.
16. Embedded in paragraph 23 is some supposition that the wife behaved inappropriately by diverting employees of F1 Pty Ltd from their work with their employer so as to work for the proprietors of Z Company while being paid by F1 Pty Ltd. Several things must be said of the husband's assertions at paragraph 23 of his affidavit, namely -

(a) he does not give the basis of the information that the wife directed certain F1 Pty Ltd staff in the manner asserted, that is to say, he does not say whether he actually witnessed any such direction given by the wife rather than by some other person at F1 Pty Ltd;

(b) the husband gives no evidence of the tasks specific persons employed by F1 Pty Ltd actually did for the business Z Company;

(c) similarly, the husband does not disclose any sum of money actually paid to specific identifiable persons employed by F1 Pty Ltd as consideration for those employees working for Z Company;

(d) the husband does not set out the basis on which he infers that the work by any F1 Pty Ltd employee was improper because the terms of their employment with F1 Pty Ltd may well have been permitted them to work with Z Company;

(e) the information in paragraph 23 of the husband's affidavit did not bear any relationship to the reason given by Ms Sergi in paragraph 9 of her 7 March 2025 affidavit, namely the removal of substantial funds from the balance sheets of companies in which the wife held a 50% shareholding; and

(f) instead paragraph 23 of the husband's affidavit purported to address an altogether different and irrelevant matter.

1. In my view the information in paragraph 23 of the husband's affidavit made 24 March 2025 is inadmissible for several reasons. It does not relate to the reasons stated by Ms Sergi as being the reason why the husband seeks production of documents by subpoenae. It is defective in form in that it fails to identify relevant employees, the terms of their employment contracts or the amounts allegedly paid to them while working for an entity other than their employer. Paragraph 23 is inadmissible and must be struck out pursuant to rule 8.18(1)(a) of the court rules which I so order.
2. Paragraph 24 raised the alleged relevance of the company J1 Pty Ltd. The husband did not exhibit an ASIC search to verify the husband's assertion that the wife is neither a director of nor shareholder in J1 Pty Ltd. The husband stated that despite not being a director in or shareholder of that company the wife made numerous payments of hundreds of thousands of dollars between 2016 and 2021. He deposed to not knowing whether those payments were recorded as loans.
3. It is important to observe what is unsaid by the husband in paragraph 24. He does not depose to the wife's involvement in J1 Pty Ltd, especially the capacity in which she allegedly paid sums of money into an AA Bank in a line of credit. The husband does not describe what the wife actually did to support his assertion that the wife made numerous payments of hundreds of thousands of dollars. The husband does not say the payments were unauthorised by the board of J1 Pty Ltd. Nor does he state how he knew the wife made transfers of hundreds of thousands of dollars to the AA Bank. He does not say he was legally or beneficially entitled to the funds paid to AA Bank. It seemed to me that the husband endeavoured to inject an atmosphere of suspicion into the details in paragraph 25 of the husband's affidavit where nothing sinister existed in point of fact, the most obvious apropos the wife being the husband's failure to state in paragraph 25 that he had actual direct knowledge of the payments allegedly by the wife made to AA Bank. The assertion in that paragraph is scandalous. It must be struck out under rule 8.18(1)(a). I make such an order.
4. Paragraph 24 is expressed to be based on the husband's solicitor's review of documents. He asserted that based on that review (he does not say that he personally engaged in any such review nor does he say what the review of the documentation inspected revealed) a sum of money owed by J1 Pty Ltd to P Pty Ltd was repaid or the liability to repay it was forgiven.
5. Various matters will be readily apparent from the first sentence of paragraph 25. They include -

(a) the information given by the husband is premised entirely on his solicitor's review of documentation rather than his own;

(b) the husband does not say that he inspected any such documents;

(c) the husband does not even say what he was told by his solicitors about the review of the documentation;

(d) no factual foundation was laid by the husband about any debt that gave rise to J1 Pty Ltd's liability to P Pty Ltd;

(e) details of the said loan were not given, even such basal information about whether the debt was in writing, verbal or howsoever constituted;

(f) whether the so-called loan was legally enforceable and thereby constituted a chose in action representing an asset; and

(g) the basis of the assertion that the loan was repaid or forgiven and the documentation allegedly reviewed enabling the husband to make that assertion.

1. The entirety of paragraph 25 is based on the statement "from my lawyers' review of the documents previously produced" yet the husband does not say what documents were actually inspected. Moreover, the solicitor who did the reviewing of documents is the proper person to give the information in paragraph 25. If any attempt were made, in viva voce evidence, to adduce in evidence-in-chief the information in paragraph 25, an insuperable objection would be raised for inadmissibility. So too as to the affidavit's form. Paragraph 25 is inadmissible and must be struck out which I now so order.
2. If the husband in paragraph 26 confined his evidence to finding documents at the former matrimonial home and then he identified those documents doing no more, paragraph 26 may have been admissible. However, the husband added words of supererogation that then took the detail in that paragraph into the realm of inadmissibility. He did so by the use of the following phrases -

(a) "which confirmed [the wife's] decision making in relation to the [Rainer Group] of companies";[16]

(b) "that she was solely responsible for the flow of funds between entities and distributions" when that is a matter for me as the trial judge; and

(c) notes of a telephone call to certain persons "as to the flow of funds in [J1 Pty Ltd]".

1. Paragraph 26 is objectionable in whole for being argumentative contrary to rule 8.18(1)(a) of the court rules, it must be struck out. I make such an order.
2. The whole of paragraph 27 is argumentative and must be struck out. Whether or not the husband accepts a particular thing is not evidence of a fact as is required by rule 8.16(1)(a).
3. In paragraph 28 the husband introduces assertions about who sits on the board of directors of E Pty Ltd. The husband does not depose to his ability to comment on the composition of the board of that company from time to time. The proper admissible way to adduce evidence of the composition of a board of directors is by ASIC search as at the relevant date. The husband chose not to adduce evidence about E Pty Ltd in that manner. Instead, he asserted that the wife and her own mother were the directors of E Pty Ltd. He also asserted that E Pty Ltd was the trustee of a particular trust. He did not exhibit the trust deed to make good that point. He then purported to record a contention about control of that trust by a third person, an issue enlivening matters of mixed fact and law. He then recited a contention of law given to him by his solicitors about an appointor of the relevant trust. Then he asserted that based on his understanding, the trustee has ultimate control and cannot be removed.
4. Most of that paragraph is either argument, conclusion or speculation, in all the circumstances inadmissible. It must be struck out which I so order.
5. Paragraph 29 is defective. That is because -

(a) in it the husband purports to state what land E Pty Ltd owns whereas a certified copy of the certificate of title is the correct method of proving registered proprietorship of land; and

(b) it purports to record the value of the land at $10m whereas no valuation evidence is given of the value of the land so the husband's assertion of its value is opinion evidence he is not qualified to give.

1. Paragraph 29 is inadmissible and must be struck out which I now do.
2. Paragraph 31 is inadmissible for purporting to express expert evidence namely evidence about unpaid beneficiary entitlements and the husband has not given evidence of his study, qualifications or experience to enable him to express any such opinion evidence. It must be struck out which I now so order.
3. Paragraph 32 is inadmissible for purporting to give evidence about the contents of a trust instrument which cannot be done by a layperson, as was held in Byrnes v Kendle.[17] So far as the husband's narration of alleged removal of entitlements from a balance sheet, he purports to give expert evidence yet he has not given a curriculum vitae by which I can be satisfied that he possesses the requisite ability to give that evidence in accordance with s 79 of the Evidence Act and cases such as Makita (Australia) Pty Ltd v Sprowles,[18] Dasreef Pty Ltd v Hawchar,[19] Honeysett v The Queen,[20] and Lang v The Queen.[21]
4. Paragraph 32 is inadmissible and must be struck out which I now do.
5. Paragraph 34 is an assertion that certain payments were made "to reduce the interest payable on the loan" yet no direct evidence was given about why the payment was made. In the absence of direct evidence along those lines the assertion that payments were made by the wife with an intended purpose is evidence of another's state of mind, thoroughly inadmissible. That renders the whole of paragraph 34 inadmissible and amenable to an order striking it out in its entirety which I now do.
6. Paragraph 35 is inadmissible for irrelevance. To assert that a witness does not know something is not probative, it is unnecessary, irrelevant and inadmissible. Paragraph 35 must be struck out.
7. Paragraph 36 is the husband's refusal to accept a particular state of affairs. That is argumentative and not evidence of a fact. It must be struck out which I now do.
8. The same applies to paragraph 37. Whether the husband has confidence that the wife will do something is irrelevant. It must be struck out which I now so order.
9. The wife's overseas accounts are not relevant to any aspect of this application so the information, such as it is in paragraph 38 is irrelevant and therefore inadmissible with the consequence that it must be struck out which I now so order.
10. Paragraph 39 is argumentative and must be struck out which I now so order.
11. Likewise is paragraph 40. It is not a fact in issue why the husband seeks documents.
12. The whole of the husband's affidavit has been struck out. The evidentiary foundation for his application before me has therefore been commensurately reduced.

THE MANY SUBPOENAE AND THE DOCUMENTS SOUGHT IN EACH

1. Before me debate raged about subpoenae that fell into one of several classes.
2. In the first class were subpoenae directed to banks and financial institutions. Those banks and financial institutions were -

(a) U Inc.;

(b) Australia and New Zealand Banking Group Limited;

(c) V Pty Ltd;

(d) Commonwealth Bank of Australia;

(e) W Pty Ltd;

(f) National Australia Bank; and

(g) Westpac Banking Corporation.

1. Those subpoenae had several things in common. Among the common features were the following -

(a) each was issued on 7 March 2025;

(b) each sought production of documents over a period 1 January 2016 to date;

(c) each sought statements for all accounts including transaction, savings, investment, loan or credit card accounts held by the wife whether in her sole name, jointly with any other person, any entity she holds, or has held an interest or role during the period or to which she is or has been a signatory or cardholder at any time during the period;

(d) each sought any interactions or notes made on the bank's system in relation to the wife associated with any of the relevant accounts; and

(e) each sought any loan applications made by the wife during the period including any loan applications made by the wife individually, jointly with any other person or entity in which she holds or has held an interest or role during the period as a borrower or guarantor.

1. The wife objected to the production of the documents sought from the banks and financial institutions by notices dated 7 March 2025. She relied on four grounds of objection, namely -

(a) the husband sought production of documents that are not apparently relevant to this litigation;

(b) the relevant subpoena is a fishing expedition;

(c) the relevant subpoena has been issued for an ulterior purpose; and

(d) the relevant subpoena is an abuse of process.

1. For present purposes I have not addressed the subpoena addressed to B Pty Ltd.

1. Mr Glick KC and Mr Sweeney of counsel relied on written submissions dated 24 March 2025 and supplementary written submissions dated 26 March 2025. The husband relied on his written submissions prepared by Mr Wilson of counsel dated 25 March 2025. When addressing the subpoenae directed to the B Pty Ltd entities, I will also address the written submissions prepared by Ms Exell of counsel for the B Pty Ltd entities.
2. Counsel for the wife advanced certain submissions by way of overview, anterior to addressing the specific submissions made by the subpoenae directed to the banks and financial institutions in this case. Those overview submissions included the following -

(a) the decisions in Woodcock & Woodcock (2021)[22] and in Goreshter & Goreshter (No 2)[23] stand for the proposition that this court's power to set a subpoena aside in whole or in part is an instance of the power of the court to regulate its own processes and to prevent an abuse of the process of the court;

(b) the power of the court to set aside a subpoena, in whole or in part, is discretionary representing the exercise by the court of its limited inherent jurisdiction to control its own processes and, where relevant, intervening in a case to preventing abuse;[24]

(c) it is an indispensable requirement that the party issuing the subpoenae articulates and demonstrates the existence of some legitimate forensic purpose to be served from the production of the documents sought in the subpoenae;

(d) here, the husband bears the onus of proof in that regard;

(e) where a subpoena is addressed to strangers to the litigation, they are entitled to protection against the invasive nature of the subpoena process the touchstone of which is relevance;[25]

(f) whereas in the discovery process it is relevant to enquire whether the documents sought might lead to a "train of enquiry" that is not sufficient for the subpoena process because the party wishing to rely on a subpoena must establish that it is "on the cards" that the documents sought would bear upon the issues in the substantive proceeding;[26]

(g) in the circumstances of this case as is presently the case, no issue in the s 79 application is before the court by which it could be said that the documents sought in the subpoenae are relevant; and

(h) a subpoena can be set aside if it requires the party to whom it is addressed to engage in a fishing exercise as that concept was explained by Sir Frederick Jordan in Commissioner for Railways v Small[27] and explained by me in Seldon & Seldon.[28]

1. It therefore became necessary to examine the precise terms of the documentary requests as sought by the husband in his subpoenae addressed to banks and financial institutions. The wording was the same in respect of all subpoenae so it was unnecessary to separately consider the terms of each subpoena to each bank or financial institution.
2. For the purposes of the analysis that follows I have used the subpoena dated 7 March 2025 addressed to U Inc. The period of relevance is 1 January 2016 to date, over nine years.
3. Paragraph 2.1 requires production of statements for all accounts (not limited to transaction, savings, investment, loan or credit accounts) held by the wife over a nine year period between 1 January 2016 to date.
4. The accounts sought over that period of time relate to the wife as week as all accounts whether held -

(a) in her sole name; or

(b) jointly with any other person; or

(c) by an entity in which the wife currently holds or historically has held "an interest" or "a role" (whatever that meant) during the period; or

(d) to which she has been a signatory or a card holder at any time during the period enquired after.

1. Pausing there, the husband deliberately cast the net wide by seeking "statements" in respect of a variety of accounts. Those accounts may be transaction, savings, investment, loan or credit card accounts. He requires the bank or financial institution to which the subpoena is addressed to rummage among its records to see precisely which account answers the description in paragraph 2.1. Assuming any such accounts exist in respect of the period enquired after, the bank or financial institution must then engage in a complex process of analysis by enquiring whether any of the statements of the types of accounts sought over the period enquired after are -

(a) in the wife's sole name;

(b) if not in hers solely, in the name of the wife and any other person jointly;

(c) if not that, in the name of any entity (inferentially corporate or natural) in which she now holds or once held "an interest" (whatever that means) or "role" (whatever that means) during the nine year period enquired after; or

(d) if not that, in respect of one or more accounts to which she now is or once has been a signatory or card holder over the period enquired after, it being more than nine years.

1. Before examining whether that request is irrelevant, fishing or an abuse, let me first go to paragraph 2.2 of the schedule. In it, for the period 1 January 2016 to date, the husband seeks from the bank or financial institution any iteration or notes made on the bank's system in relation to the wife "associated with any of the relevant accounts". Presumably "notes made on the bank's system" refers to electronic notes because only electronic notes could be "on the bank's system". Yet any such electronic notes are sought in relation to the wife "associated with any of the relevant accounts". Construing the request in paragraph 2.2 of the schedule is not a straight forward matter. Precisely what an "interaction" is in the context of paragraph 2.2 is near impossible to tell. Notes made on the bank's system is easy enough to understand but the breadth of those notes is enormous and, even if related to a specific account may have nothing whatever to do of relevance in the context of this s 79 application. For example, using a hypothetical example, if on 3 March 2016 the wife telephoned U Inc. to say payment of her February credit card statement would be two dates late, it is almost impossible to see the relevance of such a note to this litigation.
2. So far as paragraph 2.3 of the schedule was concerned, its precision of emphasis is much curtailed. In that paragraph, the husband seeks production of any loan applications made by the wife during the period from 1 January 2016 to date as well as any loan applications -

(a) by the wife individually; or

(b) jointly with any other person; or

(c) jointly with any entity in which she now holds or once held "an interest or role" during the period from 1 January 2016 to date as a borrower or guarantor.

1. Precisely why the husband seeks from U Inc. loan applications relevant to the wife and others in which she may be guarantor is difficult to see. If she is a borrower, then her balance sheet at trial will reveal her liabilities.
2. The apparent relevance test has not been demonstrated in respect of any document sought by the husband in any of the subpoenae directed to the banks or financial institutions. I am unable to divine any legitimate forensic purpose to be gained by requiring the banks and financial institutions to produce the documents sought. The documents sought do not go to any live issue in this case as this case is currently formulated.
3. The subpoenae addressed to the banks and financial institutions are an exemplar par excellence illustration of a fishing expedition. If each bank or financial institution were required to answer each impugned subpoenae on this application, each bank and financial institution would be required to do what Jordan CJ said must not be done, namely, endeavour to form a judgment as to whether any particular document throws light on a dispute. It is not the task of a party on whom a subpoena has been served to engage in intellectual deductive reasoning simply to ascertain whether a document might properly respond to the request. The requests, particularly those that are expressed with such imprecision as are those in the whole of paragraph 2 of the schedule, impose an unduly burdensome task on the party called upon to answer the subpoena.
4. It is not presently possible for me to say whether each subpoena issued to a bank or financial institution has been for an improper purpose. That said, it was put in debate that the trial date will be lost if the husband is permitted to engage in the subpoena process in which he currently engages because the task of submitting documents obtained by subpoena to the intended expert will extend beyond the start date of the trial and even if it does not do so, the date for the provision of the adversarial expert's report will almost certainly not be produced ahead of the trial.
5. The documents sought by subpoenae are to be deployed for a peculiar purpose, in my view. Assuming the objections to compliance were overcome (and such an assumption cannot be made in the case here) then documents would be submitted to the adversarial expert for him to express an opinion that in relation to companies in which the wife has a 50% interest as shareholder and she has approved the forgiveness of loans repayable to the companies she owns as to a half shareholding. It is most optimistic and ambitious but forlorn to take the view that documents produced in response to any of the subpoenae to banks or financial institutions will assist in that purpose.
6. For those reasons, I uphold the objections in each notice of objection dated 7 March 2025 in relation to the subpoenae addressed to U Inc., Australia and New Zealand Banking Group Ltd, V Pty Ltd, Commonwealth Bank of Australia, Westpac Banking Corporation, W Pty Ltd and National Australia Bank Ltd. Each subpoena directed to each bank or financial institution just mentioned is set aside.

1. The husband served a subpoena filed 7 March 2025 on the accountancy firm B Pty Ltd. That was the subject of a notice of objection from the wife dated 7 March 2025. It was also the subject of a notice of objection dated 7 March 2025 by a collection of entities compendiously called "the interested parties" represented by Arnold Bloch Liebler and Mr Shaw KC.
2. The husband served a subpoena sealed 20 March 2025 directed to B Pty Ltd which was the subject of a notice of objection of the same date by the wife and a notice of objection dated 25 March 2025 by B Pty Ltd.
3. Each subpoena was in similar form. Each notice of objection was also in largely similar form.
4. It is convenient to take first the subpoena sealed 7 March 2023 addressed to B Pty Ltd. I was told that that subpoena was replaced by the subpoena addressed to B Pty Ltd because the earlier incorrectly recorded the correct identity of the entity on whom the subpoena was sought. In it the husband sought production of five categories of documents from 19 named companies and trust entities plus a catch-all "any trust associated with the entities above". That was later abandoned. The five categories of documents were -

(a) company constitutions and or memorandum or articles of association;

(b) financial statements and signed taxation returns for each of the 19 entities and the catch-all entity for the period 30 June 2017 to date;

(c) loan accounts and unpaid beneficiary account ledgers for each entity from 1 July 2016 to date including all loan agreements or documents relating to any loan assignment or forgiveness;

(d) signed minutes of meetings and resolutions of each of the 19 entities for the period 1 July 2016 to date; and

(e) all written communications relating to the forgiveness or removal of loan accounts or present unpaid entitlements from the accounts of any of the entities from 1 July 2016 to date.

1. In paragraph 3 the husband sought all written communications with the wife during the period 1 July 2016 to date.
2. In paragraph 4 the husband sought share portfolio statements for share investments by P Pty Ltd from 1 July 2016 to date.
3. The wife's notice of objection relied on six grounds. They were no apparent relevance of the documents sought, fishing, improper purpose, privilege, abuse of process and oppression.
4. The 19 entities from which documents were sought were companies and trusts. They were listed as follows -

(a) D Pty Ltd as trustee for Rainer Family Trust No 6;

(b) C1 Pty Ltd as trustee for Rainer Family Trust No 8;

(c) C2 Pty Ltd as trustee for Rainer Family Trust No 10;

(d) E Pty Ltd Ltd as trustee for Rainer Family Trust No 12;

(e) F1 Pty Ltd as trustee for Rainer Family Trust No 13;

(f) G Pty Ltd as trustee for the H Trust;

(g) J1 Pty Ltd;

(h) J2 Pty Ltd

(i) K Pty Ltd as trustee for L Pty Ltd;

(j) M Pty Ltd;

(k) N Pty Ltd;

(l) F2 Pty Ltd;

(m) O Pty Ltd;

(n) P Pty Ltd;

(o) Q Pty Ltd;

(p) H Trust;

(q) R Pty Ltd;

(r) S Pty Ltd;

(s) T Pty Ltd; and

(t) any trust associated with the entities above not otherwise expressly listed (later abandoned).

1. For reasons explained as being grounded in the correct name of the recipient, as had already been explained, the subpoena issued against B Pty Ltd was replicated and issued against B Pty Ltd. It was in identical terms to the subpoena issued against B Pty Ltd.
2. It is convenient to consider the position of B Pty Ltd first. On 26 March 2025 a director of B Pty Ltd made an affidavit in opposition to the subpoena. That affidavit was made by Mr BB, a director of that entity. Mr CC of B Pty Ltd made an affidavit on 27 February 2024 and on 20 March 2025. Mr DD, a solicitor, also made an affidavit in opposition to the subpoena directed to B Pty Ltd.
3. In opposition to the production of documents by B Pty Ltd an affidavit was made by Mr BB a director of that entity, Mr CC of B Pty Ltd made an affidavit on 27 February and on 20 March, Mr DD solicitor also made an affidavit in opposition to the B Pty Ltd subpoena.
4. In the written submissions of Ms Exell of counsel for B Pty Ltd, she contended that B Pty Ltd's objection was grounded in three main propositions. First, she submitted that no legitimate forensic purpose was evidenced by which the documents sought could be assessed for apparent relevance. Second, she submitted that the subpoena is very widely drawn, it effectively seeks discovery from the subpoenae recipients and it amounts to an impermissible fishing expedition. Third, she said that compliance with the subpoena is oppressive because it requires B Pty Ltd to assume an unduly burdensome task by engaging in the process of locating, finding, unearthing and copying the relevant documents.
5. Taking first the oppression contention, Ms Exell submitted that each category of document is widely drawn and covers a significant period of time requiring the party to whom it is addressed to investigate a number of databases. Next, Ms Exell submitted that B Pty Ltd will be forced to do what Jordan CJ held should not be done by compelling B Pty Ltd to trawl through the totality of its records to ascertain whether any documents throw light on the dispute. The imprecision adopted in paragraph 2T highlighted how broad the request against B Pty Ltd really was in its reference to "any trust associated with the (19) entities above". What was contemplated by "associated" was bereft of meaning she contended.
6. Mr BB deposed to solicitors frequently participating in correspondence meaning that the documents sought especially in paragraph 2.3 are likely to trammel legal professional privilege.
7. B Pty Ltd sought orders upholding their objections to the subpoenae and that orders be made setting aside the B Pty Ltd subpoenas.
8. Similar submissions were advanced by the wife in respect of those particular subpoenae.
9. The interested parties are so called because the subpoenae directed to B Pty Ltd raises issues in respect of which those entities have a legitimate interest. The interested parties are D Pty Ltd, C1 Pty Ltd, C2 Pty Ltd, E Pty Ltd, F1 Pty Ltd, G Pty Ltd, J1 Pty Ltd, L Pty Ltd, M Pty Ltd, N Pty Ltd, F2 Pty Ltd, O Pty Ltd, P Pty Ltd, Q Pty Ltd and T Pty Ltd.
10. Even though production of their records is sought through B Pty Ltd, the 19 entities have separate reasons for objecting to the production of documents relevant to them. The interested parties advanced contentions to the effect that the documents concerning them sought from B Pty Ltd ought to not be released because the husband is engaging in an abuse of process, he is fishing, the documents themselves have no apparent relevance and, to the extent that legal advice has been sought or given concerning some documents, then a claim to privilege may also be argued.

1. In my view the B Pty Ltd subpoena must be set aside. I uphold the objections to it as advanced by the wife and by the interested parties.
2. The subpoenae are absurdly broad and non-specific. In one instance a trust that may be "associated" with the named entities is somehow purportedly drawn into the arena of disputation. That was abandoned.
3. The subpoenae are oppressive as well as being fishing. The recipient will be required to undertake an extensive investigation just to determine whether any documents respond to the requests.
4. Above all, the apparent relevance of the documents sought has not been demonstrated nor could it. No issue is raised in this s 79 application to which the documents sought by the subpoena are germane. I dismiss all subpoenae issued by the husband the subject of these reasons.

1. The husband's application in a proceeding dated 7 March 2025 sought orders varying the orders made by McDonald JR so that the parties were not restrained by the undertakings previously given preventing the distribution of the subpoenaed documents save to experts engaged by the husband. By the amendment to the order the husband wanted to ensure that he could provide to his proposed adversarial experts with any documents produced pursuant to this subpoena debate.
2. In view of the outcome of this subpoena debate, the application brought by the husband is unnecessary so I dismiss it. The husband has comprehensively failed in this application before me. The wife, the subpoenaed parties and the interested parties succeeded in objecting to all subpoenae. Orders have been made setting aside all relevant subpoenae. No documents will be produced in response to the subpoenae to be shown to the husband's proposed adversarial witness. No need exists to amend the orders made by McDonald JR on 24 June 2024.
3. This case remains fixed for trial to commence on 26 May 2025.

I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Wilson.

[1] [2021] FedCFamC1F 88; (2021) 64 Fam LR 489 (at [48]-[86]).

[2] The parties called "the subpoenaed entities" were Q Pty Ltd, E Pty Ltd, D Pty Ltd, P Pty Ltd, C2 Pty Ltd, K Pty Ltd, F3 Pty Ltd and F1 Pty Ltd. Mr C. Shaw KC represented the subpoenaed entities.

[3] This subpoena was directed to 20 entities, namely, D Pty Ltd as trustee for Rainer Family Trust No 6, C1 Pty Ltd as trustee for Rainer Family Trust No 8, C2 Pty Ltd as trustee for Rainer Family Trust No 10, E Pty Ltd as trustee for Rainer Family Trust No 12, F1 Pty Ltd as trustee for Rainer Family Trust No 13, G Pty Ltd as trustee for the H Trust, J1 Pty Ltd, J2 Pty Ltd, K Pty Ltd as trustee for L Pty Ltd Superannuation Fund, M Pty Ltd, N Pty Ltd, F2 Pty Ltd, O Pty Ltd, P Pty Ltd, Q Pty Ltd, H Trust, T Pty Ltd and "T. Any trust associated with the entities above, not otherwise expressly listed (together, the Interested Parties)".

[4] (1981) 148 CLR 337.

[6] In the case of the husband's 24 March 2025 affidavit, on p 13 of 116 under the deponent's signature the printed words appear "this affidavit was prepared/settled by lawyer Josephine Sergi".

[7] The husband's affidavit made 24 March 2025 was not tendered in evidence nor was it accepted into evidence. In fact, the whole of it was the subject of objection by Mr Glick KC.

[8] Mr Wilson agreed that in the absence of pleadings, identifying facts about the issues in dispute is highly problematic.

[12] The "company" in that context was not a defined word in the relevant order.

[13] [1874] UKLawRpCh 20; (1874) LR 9 Ch App 244.

[14] [2024] FedCFamC1F 702.

[15] Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470, Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352, Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155, Anikin v Sierra [2004] HCA 64; (2004) 79 ALJR 452 all of which are decisions in the High Court which makes good that point.

[16] To assert that a collection of companies makes up a group of companies when the individual members constituting the group is not set out is itself inadmissible because the concept of "group of companies" is well understood in company law.

[17] [2011] HCA 26; (2011) 243 CLR 253.

[18] [2001] NSWCA 305; (2001) 52 NSWLR 705.

[19] [2011] HCA 21; (2011) 243 CLR 588.

[21] [2023] HCA 29; (2023) 278 CLR 323.

[22] [2021] FedCFamC1F 88; (2021) 64 Fam LR 489

[23] [2024] FedCFamC1F 306.

[24] Secretary of the Department of Planning, Industry & Environment v Blacktown City Council [2021] NSWCA 145.

[25] Vissell & Vissell [2021] FamCAFC 76.

[26] Baumann & Rushbrooke [2016] FamCA 905, Kayce & Wilda [2023] FedCFamC1F 1140 and Woodcock v Woodcock [2021] FedCFamC1F 88; (2021) 64 Fam LR 489.

[28] [2020] FamCA 762 (at [28]).