Antoun v Antoun

Antoun v Antoun - [2020] NSWSC 860 - NSWSC 2020 case summary — Zoe

[3]

Procedural Framework

There can be no doubt that the documents the subject of the request to the Federal Circuit Court and Family Court, have been produced, effectively, as on subpoena.
UCPR r 1.8 provides: The court may determine any question arising under these rules (including any question of privilege) and, for that purpose - (a) may inspect any document in relation to which such a question arises, and (b) if the document is not before the court, may order that the document be produced to the court for inspection.
For a subpoena, or in this case, a request to the Federal Circuit Court and Family Court to have been sent at the behest of one of the Plaintiffs, there must be a legitimate forensic purpose and the party making the request, bears the onus of establishing that legitimate forensic purpose: Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] NSWSC 410 at [52] (Ward CJ in Eq).
UCPR r 33.4 provides: (1) The court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it. (2) An application under subrule (1) must be made on notice to the issuing party. (3) The court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest...
In R v Saleam [1999] NSWCCA 86, Simpson J (with whom Spigelman CJ and Studdert J agreed), stated at [11], that the test for determining whether a party is to be granted access to documents produced on a subpoena are "no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made), the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case".
As to what is required to establish a legitimate forensic purpose, in Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2020] NSWSC 620 at [36], Ward CJ in Eq, noted: "As I explained in Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] NSWSC 410 (Broadway Plaza) (at [49]-[59]), there must be a legitimate forensic purpose for a subpoena or notice to produce in that the documents sought must be relevant and must have a sufficient apparent connection to the issues in the case to justify their production (or, put differently, it must be able to be concluded that they could possibly throw light on the issues in the case) (see Lindsay-Owen v HWL Ebsworth Lawyers [2017] NSWSC 1692 at [24] per Rothman J). It is not, however, sufficient merely to show that the documents sought are, or may be, relevant to an issue for decision; rather, it must be shown that it is likely that the documents will materially assist on an identified issue or that there is a reasonable basis, beyond speculation, that it is likely that they will materially assist (see Cohen v Morgans [2019] NSWSC 608 at [63]). This must be determined by reference to the issues in the proceeding (see Broadway Plaza at [52]; see also Rinehart v Rinehart [2018] NSWSC 1102 at [47])."
In Boase v Axis International Management Pty Ltd [No 3] [2012] WASC 498, at [10]-[11], Beech J had summarised the relevant principles governing inspection of subpoenaed documents as follows: "The first question is whether the documents, or the passages to which objection is taken, have apparent relevance to the litigation. Apparent relevance is a low threshold. It is not a question of whether it appears that the party issuing the subpoena could, or could probably, tender the document in evidence. It is enough to establish apparent relevance if a document or class of documents gives rise to a line of enquiry relevant to the issues before the trier of fact, including for the purpose of meeting the opposing case by way of cross-examination. Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350, 374; Stanley v Layne Christensen Co [2004] WASCA 50 [9]; Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 [18]. In advance of trial, the determination of whether a document is relevant is a difficult one: National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372, 385; Apache Northwest Pty Ltd (373). In determining relevance, the difficulty of assessing relevance prior to trial must be taken into account. The necessity for having a document in order to fairly dispose of the issues at trial might well not become apparent before trial: Apache Northwest Pty Ltd (374, 376, 379); Stanley v Layne Christensen Co [9]; Commonwealth of Australia v Albany Port Authority [18]. Ultimately the relevance of the documents produced will be a question for determination at the trial. It is not appropriate for the court to embark on a detailed preliminary enquiry involving evidence from the party seeking to issue the subpoenas and the recipient of the subpoenas: Apache Northwest Pty Ltd (379)."
Relevantly, to this case, at [19]-[21], his Honour added: "If a document is apparently relevant, inspection will usually be permitted, even though it is not admissible as it stands and the party seeking the document has not undertaken to tender it or use it in cross-examination: Waind (385); Apache Northwest Pty Ltd (373 - 374). Confidentiality is not of itself a ground to refuse inspection of an apparently relevant document. In the end, the public interest in the administration of justice prevails over the interest in confidentiality of the information: Apache Northwest Pty Ltd (379); Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34, 38. However, confidentiality can be taken into account, together with any assessment of the extent of the document's apparent relevance, in the exercise of discretion whether to permit inspection: Apache Northwest Pty Ltd (380 - 381). The principles of case flow management and the objects in O 1 r 4(b) of the Rules of the Supreme Court 1971 (WA) must be kept in mind in the exercise of discretion whether to permit inspection: Wookey v Quigley [No 5] [2011] WASC 275 [35]."
In other words, before access is granted, the Court should be satisfied that the documents produced give rise to a line of enquiry which is relevant to the issues in dispute: Stanley v Layne Christensen Co [2004] WASCA 50 at [9], (Miller and EM Heenan JJ). Mere relevance, however, is not sufficient. As Beazley JA (with whom James and Kirby JJ agreed) considered in Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65 at [59]-[63]: "It is not sufficient for a party seeking production of documents to merely establish that such documents are or may be relevant. This is apparent from the comments of Mahoney AP in Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162. In that case, Mahoney AP was concerned with the question whether access should be given to certain documents that had been subpoenaed in criminal proceedings. His Honour said, at 181: '… the court must, in general, be satisfied that the documents are relevant to an issue for decision by the court in the litigation. It is not open to a party, as on a 'fishing expedition', to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding.' (Emphasis added) His Honour stated, at 182, that whilst a party must show, or it must appear, that the subpoenaed documents are relevant to an issue in the proceedings, 'mere relevance is not enough'. His Honour continued: " … But, in my opinion, it is not sufficient for a party subpoenaing the document to say 'the document is relevant because, if it does anything, it establishes the case against me'. He must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: 'I wish to see the document to see if it may assist my case.' That, in my opinion, is not sufficient. … Neither Kirby ACJ (as his Honour then was) (who dissented on the facts) nor Hunt AJA (who agreed with Mahoney AP in the result) made any reference to 'mere relevance'. However, each applied a test of 'forensic purpose' and the need for it to be "on the cards" that the documents would "materially assist the accused". Accordingly, the second element of the 'test', that is, that it must be "on the cards" that documents would materially assist the case, subsumes in it the notion that "mere relevance" is insufficient. Documents may be relevant even if they do not assist a party's case. To that extent therefore, there is no difference in principle in the test applied by each of the members of the Court. But in any event … the statement of Mahoney AP has been applied in subsequent decisions in New South Wales and Victoria." (citations omitted).
Her Honour went on to address the meaning of "on the cards" - an expression formulated by Gibbs CJ in Alister v R (1984) 154 CLR 404 at 414; [1983] HCA 45 - noting, relevantly, at [70]: "… Simpson J's formulation in R v Saleam … represented the commencement of a line of authority in which the test for the production of, or access to, documents, was specifically stated as comprising two steps: a legitimate forensic purpose and that it was "on the cards" that the documents would materially assist the case. However, in stating the test in this specific 'two step' way, her Honour did not state any new principle. … [I]n the authorities that preceded R v Saleam … including Alister, the courts, in determining whether access would be granted to documents sought on subpoena, have always applied a test that involves determining whether each of the factors identified by Simpson J had been established."
Although Beazley JA could, and did, not see any reason to depart from the language of Simpson J in R v Saleam, her Honour considered other statements of the test, citing Bell J in Ragg v Magistrates' Court of Victoria (2008) 18 VR 300 at 344 [96]; [2008] VSC 1, at [96], in which his Honour wrote, in the context of a criminal trial: "A legitimate purpose is demonstrated where the court considers, having regard to its fundamental duty to ensure a fair trial that there is a reasonable possibility that the documents will materially assist the defence. That is a low threshold but it is a threshold."
These principles apply equally in civil cases: Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd at [52].
Yet, where a third party applicant objects to access being granted to documents produced to the Court on the basis of a claim of confidentiality, the Court has recognised the need to balance competing interests. Whilst private rights of confidentiality do not override the Court's request for the production of documents by another Court, those rights of confidentiality "may be taken into account in granting access to documents produced on subpoena": Hancock v Rinehart [2015] NSWSC 2140 at [10] (Brereton J, as his Honour then was).
Furthermore, in Hillston v Bar-Mordecai [2002] NSWSC 973, Bryson J noted, at [8]: "…the confidentiality of material in [Family Court files] should be given a relatively high value in evaluation of the claim of the plaintiff in this case for inspection. … They include much material which was highly confidential when recorded and so remains, and much material which persons other than Mr Bar-Mordecai who are not parties to this case would reasonably regard as confidential material which ought to be protected. With the limited exceptions to which I will refer this claim outweighs any discernible legitimate forensic purpose of the plaintiff and his advisers in having inspection of them."

[4]

Determination

Having considered the applicant's objection to access, there were reasonable grounds for the objection to access being granted to some of the documents produced. Those documents relate to her financial circumstances and other personal details, which, in my view are not relevant, at all, to the substantive claim and would be confidential to the applicant.
Mr Hanna, the third Defendant, and Ms Pringle, counsel for the Plaintiffs, each accepted the submission made by the applicant that information about the applicant's assets, liabilities, income and expenditure is irrelevant to any issues in the substantive proceedings and that it is confidential to her. It was not suggested that any of the documents produced that reveal the financial resources of the applicant would be relevant to the substantive proceedings and no order was sought for access to any documents, or parts of documents, that revealed such information.
Then, I considered whether I was satisfied that there are other documents in the files produced that were relevant and whether there was a reasonable possibility that those documents may materially assist one or both of the parties.
Having looked at the documents, it seemed to me that there were documents that were both relevant, and that may be of material assistance, in the current proceedings. These related to the fact that a divorce order was made between the deceased and the applicant. Additionally, any documents that revealed the financial resources of the deceased as they were shortly before his death were within this category. Furthermore, these were documents which, if the deceased were alive, he would have had in his possession and that would have been able to be disclosed in litigation.
In this case, Mr Hanna, as the representative of the deceased's estate, knows nothing about the deceased's estate. To date, the first and second Defendants, the two children of the applicant, have not assisted him in this regard. It is clear that at least some of the documents that have been produced will assist in providing some information to him about the deceased's property following the settlement of the alteration of property interests between the deceased and the applicant who is now his former wife. In circumstances where such documents, or part of some of the documents, produced to the Court, do not reveal information about the applicant, and refer only to the deceased, there can be no legitimate basis for the applicant opposing the inspection of the documents at the appropriate time.
Having looked at the documents in the material produced, and balancing the competing interests of the parties to the proceedings and the applicant who has objected to access being granted, in my view the documents referred to below were relevant and could materially assist the parties in the substantive proceedings. There was a legitimate forensic purpose in permitting inspection.
I considered that inspection should be permitted by the Plaintiffs, but only after their evidence in chief is completed, of only the following documents: 1. The divorce order made by the Family Court on 26 March 2018; 2. Certain parts of the Consent Orders entered into so far as they relate to the entitlement of the deceased, being paragraphs 1(a), (b) and (c); paragraphs 2 and 4; paragraph 7(a), (b) and (c); and paragraphs 8 and 9; 3. The whole of the deceased's Financial Statement filed 29 August 2017; 4. Paragraphs 1 to 6 inclusive and 40 to 45 inclusive of the affidavit of the deceased filed 29 August 2017.
Practice Note SC Eq 11 requires that, save in exceptional circumstances; parties must serve their affidavits in the principal proceedings before the Court will make an order for disclosure of documents. Some flexibility on this may be required in the case of Mr Hanna who knows virtually nothing about the nature and value of the deceased's estate.
I granted first access to the third Defendant to inspect only the documents that I have identified. I also granted access to the Plaintiffs, to those documents, but only after their evidence in chief is completed.
To assuage the concerns of the applicant, the relevant documents, or parts thereof, have been photocopied by my Associate and placed in an envelope marked, "Documents to which access has been granted". The original of all documents produced have been placed in another envelope that has been marked "Documents to which access has not been granted".
Following the consideration of the documents, and when the matter was last listed, the applicant was informed of the documents that were to be made available for inspection. She indicated that she had no further objection to access being granted only to those documents. A copy of the form of orders was provided to her following the conclusion of the hearing on that date.
As the applicant is a litigant in person and has appeared, on each occasion herself, without legal representation, I make no order as to her costs. The Plaintiffs' costs of the applicant's notice of motion will be the Plaintiffs' costs in the cause. The third Defendant's costs, calculated on the indemnity basis, of the notice of motion, should initially, be paid out of the estate of the deceased, with liberty to the third Defendant to seek any other order that he is advised, as against the Plaintiffs.
The Court: 1. Orders that access be granted to the third Defendant to inspect only the documents that are identified in the subpoenaed documents as being available for inspection. 2. Orders that access be granted to the Plaintiffs, to inspect only the documents that are identified in the subpoenaed documents as being available for inspection, but only after the evidence in chief of each Plaintiff is complete. 3. Makes no order as to the applicant's costs, to the extent that she is to pay her own costs of the application. 4. Orders that the Plaintiffs' costs of the applicant's notice of motion be the Plaintiffs' costs in the cause. 5. Orders that the third Defendant's costs, calculated on the indemnity basis, of the notice of motion, should initially, be paid out of the estate of the deceased, with liberty to the third Defendant to seek any other order that he is advised.

At a glance

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Judgment (5 paragraphs)

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Legislation Cited (2)

Cases Cited (18)

Cited By (2)