mixed. Access ordered in part: third Defendant permitted to inspect only the documents identified as available for inspection; Plaintiffs permitted to inspect the same documents but only after each Plaintiff...
Key principles
A party seeking inspection of documents produced in answer to a subpoena or request to produce must demonstrate a legitimate forensic purpose and that it is 'on the cards' that...
Confidentiality of documents, including material in Family Court files, does not automatically bar inspection of apparently relevant documents; however, confidentiality is a...
Under UCPR r 1.8 the court may inspect documents in relation to questions of privilege or other questions arising under the rules and may order production of documents for that...
Where a third party objects to inspection on grounds of privacy or confidentiality, the court may itself inspect the subpoenaed material and make a limited access order,...
Issues before the court
Whether the Plaintiffs should be permitted to inspect documents produced from Family Court and Federal Circuit Court files in response to their...
Plain English Summary
The Supreme Court inspected family-law and Federal Circuit Court files produced in response to a plaintiffs' request. The deceased's former spouse objected, claiming privacy. The Court accepted her objection to documents revealing her personal finances and withheld those. The Court found some documents relating to the deceased (divorce order, parts of consent orders, the deceased's financial statement, and portions of his affidavit) to be potentially helpful and allowed a limited inspection: the estate representative may inspect immediately; the plaintiffs may inspect only after they finish their evidence in chief. Costs orders were made as set out.
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Deep Dive
1,961 words · generated 27/06/2026
What happened
Antoun v Antoun [2020] NSWSC 860 concerned access to documents produced from Family Court and Federal Circuit Court files in a Succession Act family provision proceeding. Two children of the deceased brought an application for family provision. The deceased's appointed executors and beneficiaries were non-participating defendants. The Court appointed an independent solicitor, Mr Joseph Hanna, as representative of the estate (UCPR r 7.10(2)(b)) to ensure the estate was properly represented in the absence of active participation by the executors (see Judgment paras 2–3).
Cited legislation
2 cited instruments linked from this judgment.
The Plaintiffs sought from the Federal Circuit Court and Family Court the file relating to the deceased’s divorce and property settlement with his former spouse, Mary Antoun (the applicant). Those files were produced to the Supreme Court (subpoena packet). The applicant opposed inspection by the Plaintiffs on grounds the material was private and confidential and included her personal financial information; she sought a stay preventing access until her notice of motion was heard (see Judgment paras 4–6 and the quoted affidavit excerpt).
The Court directed Mr Hanna to inspect the produced files and provide a confidential affidavit identifying documents he considered relevant, to facilitate resolution of the dispute over inspection (directions recorded at hearings on 6 March and 3 April 2020). The applicant was provided redacted photocopies for her review. At a later listing the applicant persisted in objecting to disclosure of redacted documents to the Plaintiffs, and the Court elected to inspect the documents itself to determine what access should be permitted (see the procedural chronology in the Judgment).
After inspection, the Court concluded some documents (those disclosing the applicant’s personal financial circumstances) were neither relevant to the substantive family provision claim nor appropriate for disclosure, and should be protected. Other documents, namely the divorce order, certain parts of the consent orders (specified paragraphs), the deceased’s financial statement dated 29 August 2017, and selected parts of an affidavit of the deceased filed 29 August 2017, were found to be relevant and potentially materially helpful and were ordered available for inspection in a limited manner: the estate representative could inspect them, and the Plaintiffs could only inspect them after each Plaintiff’s evidence in chief was completed (see Determination and Orders).
Costs were addressed carefully: the applicant, a litigant in person, was ordered to pay her own costs (no order for costs against her); Plaintiffs’ costs of the applicant’s notice of motion would be the Plaintiffs’ costs in the cause; the third Defendant’s indemnity costs of the notice of motion were initially to be paid from the deceased’s estate with liberty to seek other orders.
Why the court decided this way
The decision tracks a well-established two-part approach to inspection of documents produced on subpoena or by request to another court: (1) there must be a legitimate forensic purpose and (2) it must be 'on the cards' that the documents will materially assist the applicant’s case (the Court follows the formulation in R v Saleam and subsequent authorities; see Judgment under 'Procedural Framework').
The Court exercised UCPR r 1.8 power to inspect documents itself where questions of privilege or other issues arose: the rule authorises the court to inspect documents in relation to questions arising under the rules and to order production for that purpose (Judgment, Procedural Framework para 2). That power justified the Court’s private inspection to determine which documents could properly be disclosed.
Having inspected, the Court balanced competing interests: the public interest in proper administration of justice and the utility of the documents for the litigation on the one hand, and the applicant’s private/confidential interests in her personal information on the other. The Court accepted as uncontested by counsel (and apparently accepted by the estate representative) that the applicant’s personal financial material was irrelevant to the family provision claim and should remain protected (Determination para 1–2). Conversely, the Court found documents that related to the deceased’s divorce, and those revealing his financial position shortly before death, were properly within the scope of potentially relevant materials and likely to assist the estate representative and the parties, because they were documents the deceased would have had and could have disclosed if alive (Determination paras 4–6). The protective solution was to permit inspection of a narrowly defined set of documents and to impose timing restrictions (Plaintiffs only after evidence in chief) and redaction where necessary.
Thus, the outcome reflects both adherence to the 'legitimate forensic purpose'/'on the cards' threshold, and a careful discretionary balancing to protect privacy where the material is irrelevant to the litigation.
Before and after state of the law
Before this decision, the governing principles for inspection of subpoenaed documents were well developed in New South Wales and other Australian jurisdictions:
The two-step test, legitimate forensic purpose and that it is 'on the cards' the documents may materially assist, is articulated in authorities such as R v Saleam and was discussed in subsequent cases (the Judgment cites and follows this line of authority; see Procedural Framework).
Authorities such as Boase provided practical guidance on apparent relevance being a low threshold but emphasised that confidentiality is a factor in the exercise of the court’s discretion.
Courts have repeatedly said confidentiality does not automatically prevent inspection where relevance is established, though it can be persuasive if the documents contain highly personal matter (see Hillston v Bar-Mordecai cited in the Judgment).
Antoun v Antoun does not change these legal tests. What the decision adds is a concrete illustration of how the court will manage competing interests in the Succession List context where family law materials are produced: the Court will (i) inspect the material under UCPR r 1.8 where necessary, (ii) protect clearly irrelevant third-party private financial information, and (iii) allow targeted access to parts of the file that bear directly on the deceased’s financial position and transactions that are relevant to estate valuation and family provision claims. The decision therefore applies and illustrates established principles rather than altering them.
Key passages with plain-English translation
UCPR r 1.8 quotation (Procedural Framework para 2):
Court text: "The court may determine any question arising under these rules ... may inspect any document ... and ... may order that the document be produced to the court for inspection."
Plain-English: The Court has express procedural power to look at documents itself and to require their production when questions of privilege or relevance arise. That is the basis for the Court’s own inspection.
The Court's acceptance of the applicant's confidentiality claim (Determination para 1):
Court text: "Having considered the applicant's objection ... 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 would be confidential to the applicant."
Plain-English: The Court agreed that documents about the former spouse's personal finances were private and not relevant to the family provision case, so they should be kept from inspection.
The list of documents permitted (Determination para 7 with enumerated list):
Court text summarised: The divorce order; parts of the consent orders relating to the deceased's entitlements; the deceased's financial statement (29 August 2017); specified paragraphs of the deceased's affidavit.
Plain-English: The Court identified a narrow catalogue of documents that actually concern the deceased and his financial position and which could legitimately assist the case. Those documents were ordered to be available under controlled conditions.
What fact patterns trigger this precedent
The following fact pattern is a close trigger for applying the approach in Antoun v Antoun:
A succession/family provision proceeding where a party obtains documents from family-law or federal court files via request/subpoena;
A non-party (often a former spouse) objects to inspection on grounds of privacy/confidentiality, asserting the files contain intimate financial or personal information;
There is a legitimate forensic question about the deceased’s financial resources or a prior property settlement that could affect estate valuation or the correctness of the will or claims;
The estate or its representative lacks knowledge of the deceased’s assets and requires documents to perform its functions;
The Court needs to balance the confidentiality of a third party against the Plaintiffs’ need for relevant material.
In that combination of circumstances the Court is likely to inspect the material under UCPR r 1.8, protect truly private and irrelevant material, and permit limited access to portions of the file that relate to the deceased and may materially assist the litigation, possibly with timing or redaction conditions.
How later courts have treated it
This judgment itself primarily reviews and applies established authorities (R v Saleam, Boase, Broadway Plaza, Xinfeng, Hillston, Hancock v Rinehart, Attorney-General v Chidgey and others). Antoun v Antoun does not purport to innovate on the legal tests; instead it implements and exemplifies them in the Succession List context (the Judgment repeatedly cites those authorities and applies them to the facts). The Judgment therefore stands as a practical application and an example to which later courts may turn when similar confidentiality versus forensic-utility tensions arise in succession or similar proceedings.
This judgment explicitly followed and applied the two-part 'legitimate forensic purpose'/'on the cards' test and relied upon the Court's UCPR r 1.8 powers to inspect documents. It also emphasised the need to weigh confidentiality (particularly family law material) when exercising discretion to permit inspection. Later courts confronted with similar procedural disputes will likely treat Antoun as an example of the Court's willingness to inspect and to make narrowly tailored disclosure orders to protect third-party privacy while enabling legitimate forensic enquiry.
Note: This decision does not itself record subsequent appellate treatment. Practitioners should check for any later appellate consideration before relying on Antoun as authoritative beyond its persuasive example value.
Still-open questions
Several areas remain for future refinement or appellate consideration:
Precise boundaries of redaction and the mechanics of providing redacted copies: Antoun describes redaction and a process (photocopies redacted and returned), but leaves detailed principles about degrees of redaction and what satisfies the balance to be determined on a case-by-case basis. The Judgment recognises redaction as a tool but does not set a detailed test for when redaction suffices.
The timing restriction imposed (Plaintiffs only after evidence in chief): The Court imposed that condition here to protect the applicant's interests and court process. Whether such a timing condition will be required as a matter of principle in other contexts is unresolved; it will depend on balancing prejudice to the producing party against the recipient's need.
The metric for 'how much' personal information renders a document off-limits: The Court excluded documents that revealed the applicant’s assets, liabilities, income and expenditure as irrelevant and confidential. Future cases may clarify whether partial disclosure of a document that minimally mentions a third party's financial circumstance should be permitted with redaction, or whether categorical exclusion applies.
Costs implications beyond this case: The Court made a bespoke costs order, third Defendant's indemnity costs initially payable from the estate with liberty to seek further orders. Whether and when courts should order estate assets to pay costs of procedural contests over disclosure is a matter for future development.
Interaction with statutory or practice-note confidentiality regimes: The Judgment invoked Practice Note SC Eq 11 and recognised the requirement for affidavits before disclosure but allowed flexibility for the estate representative. How this flexibility will operate in other cases, and where the line lies between exceptional and ordinary circumstances, remains to be clarified.
In sum, Antoun v Antoun offers a practical blueprint for resolving disputes over inspection of family-law-derived documents in succession proceedings: inspect, exclude clearly private/irrelevant material, permit targeted disclosure of documents concerning the deceased's finances, and manage timing and redaction to protect privacy. The fine-grained issues listed above remain open for further judicial clarification.
Catchwords
[1983] HCA 45
Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536
Judgment (5 paragraphs)
[1]
M Antoun (Applicant in person)
File Number(s): 2019/118417
Publication restriction: Nil
[2]
Judgment
HIS HONOUR: The issue being dealt with in these reasons arose in the Succession List, on a number of occasions, as part of proceedings commenced by two children of the first marriage of Antoine Antoun (the deceased) for a family provision order under Chapter 3 of the Succession Act 2006 (NSW). The first and second Defendants named in the proceedings are the executors and beneficiaries named in the last Will of the deceased and are the children of the deceased's subsequent marriage.
Due to the failure of those Defendants to participate in the proceedings, the extent of which do not have to be repeated, on 29 November 2019, I made an order, on the application of the Plaintiffs, that Joseph Hanna, the principal solicitor and director of Conceptual Legal Pty Limited, be appointed, pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 7.10(2)(b), a representative of the deceased's estate for the purposes of the proceedings. He is a solicitor who is independent of all of the parties named in the proceedings and has no interest adverse to their interests. Naturally, before he was appointed, his consent to acting was obtained.
On 28 February 2020, the Plaintiffs filed an amended Summons naming Mr Hanna as the third Defendant to the proceedings. The first and second Defendants were not removed as Defendants as they need to be bound by any orders made in the proceedings.
Regrettably, that was not the end of matters which have caused a delay in the case management of the proceedings. On 3 March 2020, the former spouse of the deceased and mother of the first and second Defendants, Mary Antoun (the applicant), appeared before Kunc J in the Duty List, seeking leave to file and serve a notice of a notice of motion, to which I shall refer shortly.
Upon her undertaking to pay the applicable filing fee, his Honour granted leave to file the notice of motion and affidavit in support in Court; abridged the time for service of the orders, notice of motion and affidavit in support to 4 March 2020; stayed access being granted to inspect certain documents, to which I shall also shortly refer; and stood the notice of motion over to the Succession List on 6 March 2020.
The notice of motion filed by the applicant sought an order that "[s]tay and no access until notice of motion is heard". The parties and the Court treated the order sought as an injunction to restrain the parties from having general access to certain documents produced in answer to an application by the first Plaintiff to the Registrar under UCPR r 33.13 to request from the Sydney Registry of the Federal Circuit Court of Australia, the file relating to the dissolution of the marriage of the deceased and the applicant, and the application for the property settlement between those parties which was resolved by agreement between them. Subpoena Packet 19/118417 was produced to the Court in response to the request. (Such letters of request are ordinarily employed between courts in lieu of subpoenas being issued.)
In an affidavit made on 3 March 2020, in support of the notice of motion, the applicant acknowledged that she was not a party to the proceedings before the Supreme Court, but submitted that she had been a party to the proceedings in which the documents from each of the files had been produced to this Court. She then stated:
"Allowing access is against 'privacy' awarded for family and Federal Circuit Court proceedings. It is not 'just or equitable' for my rights of privacy.
Documents requested are … not relevant to Supreme Court matter in that it is a different jurisdiction and purpose and not in interfering or overriding the Will.
Documents requested as access does not outline [the deceased's] personal financials rather the documents outlines much of my personal credit card debts, loans, outstanding notices and personal asset which is invasive and of oppressive nature.
…
Documents completed Dec 2017 and [the deceased died] 2 July 2018 are in relation to personal relationship not concerning Plaintiffs any information provided or any information pertaining to personal or financial was not decided by a Judge and not a result of litigation … There was NO COURT involvement or decision by Court in making the document only consent order.
…
I wish to urgently request TO STAY and NO ACCESS provided until motion is heard."
Having heard, orally, from the applicant on the number of occasions that her application has been before me, it is clear that she bases her opposition to access being granted to the Plaintiffs upon the fact that personal information is contained in the documents produced, and that such information should not be made available for inspection as the information is confidential to her.
At a directions hearing conducted on 6 March 2020, the notice of motion proceeded and it was suggested that Mr Hanna, as the representative of the estate, in respect of whom objection to inspection was not taken, should be permitted to have access to, and should consider the documents produced to, the Court from the Federal Circuit Court and Family Court.
With the applicant's consent, the Court made the following notations and directions:
"1. Notes the undertaking to the Court of Joseph Hanna of Conceptual Legal, the solicitor appointed to represent the deceased's estate in these proceedings, that if permitted to inspect the documents produced by the Federal Circuit Court and the Family Court in answer to the request by the Plaintiffs' will only inspect documents that were filed by, or on behalf of, the deceased in the Federal Court and the Family Court proceedings, and will not disclose any information obtained by that inspection to any other party.
2. Upon the undertaking of Joseph Hanna to the Court, orders that he be permitted to inspect the documents that were filed by or on behalf of the deceased in the Federal Court and the Family Court proceedings by 4:00 p.m. on Monday, 16 March 2020.
3. Directs that by 4:00 p.m. on Friday, 20 March 2020, Mr Hanna inform, in writing, [the applicant] at (email address) whether there are any documents that he believes are, or may be, relevant to these proceedings and identify the nature of the documents that he considers are or may be relevant to these proceedings.
4. Directs that [the applicant] is to inform Mr Hanna, by 27 March 2020, whether she has any objections to the disclosure of any such documents that Mr Hanna considers relevant to these proceedings."
On 3 April 2020, the date to which the matter was then adjourned, again in the presence of the applicant, and following discussion with those present, this Court made the following notations and directions:
"1. Notes that Mr Hanna, of Conceptual Legal, has undertaken an inspection of document produced by the Federal Circuit Court and the Family Court and provided a summary of those documents to [the applicant], the person who objects to the production of those documents to the Plaintiffs.
2. Notes, with the consent of [the applicant], that Mr Hanna will again inspect the documents and identify, in a meaningful way, the documents a copy of which are required.
3. Directs Mr Hanna to provide to the Court a confidential affidavit identifying the documents, photocopy access to which he seeks, by 4:00 p.m. on Wednesday, 8 April 2020.
4. Grants leave to Mr Hanna to obtain photocopy access to the documents identified in his confidential affidavit.
5. Directs Mr Hanna to provide a copy of all of the photocopy documents, redacted to exclude all relevant information relating to [the applicant], to her by 4:00 p.m. 7 days after he has obtained the photocopy documents.
6. Directs that [the applicant] inform Mr Hanna, in writing, 7 days after the photocopied documents are provided to her, whether she objects to any other parts of the documents which have not been redacted being provided to the Plaintiffs."
In relation to the photocopy access it was, of course, limited to the representative of the deceased. Furthermore, the redacted photocopy documents were to be provided only to the applicant, the complete copy of which documents she would already have had. Thus, any photocopied documents were not made available to any other person who was not a representative of a party, or a party, in the family law proceedings.
(Since the order for photocopying was made, the Court has required all photocopies made to be returned, and they have been returned, to the Court.)
The matter was then adjourned until 11 May 2020. On that date, the applicant appeared again, and she informed the Court that she maintained her objections to even the redacted documents being made available to the Plaintiffs' legal representatives for inspection.
In those circumstances, for the purpose of determining the issue, I indicated that I would inspect the documents that had been produced and would consider to which of them, if any, access by the parties should be granted. The matter was adjourned until 22 June 2020.
The orders, to which I shall come, flow from these reasons.
[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])."
[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.
[5]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 17 July 2020
Access ordered in part: third Defendant permitted to inspect only the documents identified as available for inspection; Plaintiffs permitted to inspect the same documents but only after each Plaintiff has completed their evidence in chief. No order as to the applicant's costs (she to pay her own). Plaintiffs' costs of the applicant's notice of motion to be plaintiffs' costs in the cause. Third Defendant's costs of the notice of motion (indemnity basis) initially to be paid from the deceased's estate, with liberty to seek other orders.
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."
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.