Subpoenae in Family Law

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SUBPOENAE IN FAMILY LAW PRESENTED TO THE LEGAL PROFESSION ON 6 OCTOBER 2023 Key legal principles relating to subpoena law 1.

The seminal authority relating to subpoena law and the foundation to exposition and expansion of applicable legal principles is Commissioner for Railways v Small (1938) 38 SR 564. Briefly, the facts of the Small case involved a fatal accidents claim for wrongfully caused death. Mr Small was a passenger on an electric train who had died as a result of falling from the train.

2.

The plaintiffs issued a subpoena to the defendant, the Commissioner for Railways, in the following terms for the production of documents: (a) (b)

(c) (d) (e)

“all documents already produced for inspection; records, papers, books, memoranda, reports and recommendations, letters, estimates, plans, diagram, sketches and other documents relating directly or indirectly to the installation of automatic or self-closing safety doors or similar safety devices for electrical trains in New South Wales and/or any other places; all documents, papers, reports and correspondence relating directly or indirectly to this action; documents, papers, reports and correspondence relating directly or indirectly to falls from electronic trains; all documents, papers, reports and correspondence relating directly or indirectly to complaints about the running of and control of electric trains.”

3.

The determination of the court was that the inclusion of documents described in paragraphs (b) to (e) inclusive in the subpoena was an improper and serious abuse of the power of the Court.

4.

The determination arose following an application by the defendant to set aside the subpoena. The court in its reasons from page 573 of the reported decision expressed a number of principles, which have been since been applied extensively and expanded upon. I summarise those principles for your benefit as follows.

A subpoena to produce documents addressed to a stranger or non-party must specify with reasonable particularity the documents which are required to be produced.

The terms of the subpoena ought not require the person/entity served to search for and produce all such documents as maybe in their possession or power relating to a particular subject matter.

It is not legitimate to use the subpoena for a purpose of endeavouring to find what would in effect be a discoverable document(s) from a person who is a stranger or non-party and so not liable to make discovery.

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A stranger or non-party ought not be required to go to the trouble and expense of ransacking records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is ignorant.

A party to a proceeding may be the subject of a subpoena to produce documents, but it is important to ensure that the subpoena is not used as a substitute for discovery of documents or an application for further and better discovery.

A subpoena to produce documents should not to be used for the purpose of fishing or endeavouring to obtain evidence to support a case.

5.

The court’s reasons continued, stating that a subpoena offending the above principles is objectionable and the person served may apply to the court to have the subpoena set aside. Further, that unless the subpoena is set aside as oppressive, a person properly served and issued with conduct money must produce the documents referred to in the subpoena to the court.

6.

These principles expressed similarly have been widely applied and approved of in many authorities relating to civil proceedings across a multitude of jurisdictions.

7.

It is important to appreciate that a party to a proceeding may be the subject of a subpoena to produce documents, but subject to what is provided for in the rules of court about discovery and disclosure.

8.

In the family law jurisdiction, the Court of Appeal of the Family Court extensively addressed the summarised principles in Hatton v Attorney-General of the Commonwealth & others [2000] FamCA 892, commencing at paragraph 34.

9.

At the time of the Hatton judgment, the rules of court were silent in relation to the specific powers to set aside a subpoena and there was some doubt expressed about whether the power existed. This has since been specifically addressed and Rule 6.33 of the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) provides an express power to set aside a subpoena in part or wholly. I urge everyone to read the Hatton judgment as a thorough exposition of the law relating to subpoena.

Issuing subpoena and when to do so

10.

It is essential to have in mind the principles referred to above to avoid an application to set aside a subpoena, wholly or in part. When preparing a subpoena, it is critical that you specifically address in your mind the purpose for which you are seeking the documents. Ask yourself: what are the documents relevant to? Is there an apparent relevance to a fact in dispute or an issue that the court has to determine or a consideration in respect of which the court needs to make a finding or be satisfied about?

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11.

Critically question whether you can demonstrate the existence of the documents or likely existence of them in the possession of the party you intend to subpoena. If the party disputes possession, what evidence can you direct the court in order to demonstrate the existence of the documents, possession and their relevance.

12.

These enquiries have to be made to minimise the chance that the party served with the subpoena to produce forms a view that there is no apparent relevance in the documents being sought or that they claim not to have possession of the documents.

13.

Further, you should satisfy yourself that there is no other way of accessing the documents. That is, ensure that the documents should not be the subject of disclosure or discovery or a Freedom/Right to Information request.

14.

Some entities are not subject or amenable to subpoena because of express statutory provisions, for example, Centrelink, the Australian Taxation Office and the NDIS. 1 However, these entities may be subject to Right to Information requests and if the client of the service is a party to the proceeding, they are likely to have authority to obtain documents from those entities, which should have been disclosed or discovered if relevant, without need for subpoena.

15.

You should consider very carefully the terms in which you state or describe the documents that are to be produced. To avoid being met with a claim of oppression or abuse of process as a basis for setting aside the subpoena, consider and do the following: a. Describe with as much particularity as possible the documents which are to be produced; b. Have regard to the period covered by your request, ensuring it is not too wide. Have you confined the period to the dates material to the dispute between the parties? Or when an event is believed to have occurred.

16.

17.

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If you express the period in wide terms or describe the documents generally, a person served with the subpoena would likely have a legitimate ground to set aside.

For example, in respect of Tasmania Police, avoid using terms such as, “all documents, records, information papers or otherwise relating to a family violence incident between the parties”. Instead, if you know the date of the incident specify the date and describe with particularity what you need. For example, “The written reports, complaints and/or statutory declarations made in relation to a family violence incident between Mr A and Mr C which police officers attended on 5 June 2020.”

I will return to the topic of police records later because there are restrictions related to them.

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Issue of subpoena and obligations on persons served 18.

The Federal Circuit and Family Court (Family Law) Rules, 2 address the requirements relating to subpoenas in Part 6.5. The process for issuing a subpoena in Rule 6.26, states: Issue of subpoena (1) The court may, on the court's own initiative or at the request of a party, issue: (a) a subpoena for production; or (b) a subpoena to give evidence; or (c) a subpoena for production and to give evidence.

(2) A subpoena must be in accordance with the approved form.

(3) A subpoena must specify the name or designation by office or position of the person subpoenaed.

(4) A subpoena requiring a person to produce a document or thing must include an adequate description of the document or thing and the time and place for production.

(5) A party should not request the issue of a subpoena for production and to give evidence if production would be sufficient in the circumstances.

19.

It has long been established that a subpoena issued to a party or corporations to produce documents is enforceable as a court order. However, the person served is not bound to comply with the subpoena if it is oppressive (too wide or too uncertain) or served too late to enable reasonable opportunity to comply. However, it must be understood that the subpoena remains valid and enforceable until set aside, unless it has not been properly served.

20.

Initially, pursuant to the common law and subsequently since implementation of Rules of Court in many jurisdictions, a party served with a subpoena is entitled to adequate indemnity for the expenses of coming to court and producing the documents. A person served with a subpoena can legitimately refuse to comply if proper assurance of meeting expenses is not given. 3 (1981

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21.

Under the Rules of Court this principle is covered in Rule 6.31 and 6.35, which state respectively: 6.31 Conduct money and witness fees (1) The person serving a subpoena must give the person subpoenaed conduct money sufficient for return travel between the place of residence or employment (as appropriate) of the person subpoenaed and the court.

(2) The amount of conduct money must be at least equal to the minimum amount referred to in Part 1 of Schedule 2.

(3)

A named person served with a subpoena to give evidence and a subpoena to give evidence and produce documents is entitled to be paid a witness fee by the issuing party in accordance with Part 2 of Schedule 2, immediately after attending court in compliance with the subpoena.

6.35 Cost of complying with subpoena if not a party (1) This rule applies if: (a) a subpoena is addressed to a person who is not a party to the proceeding; and (b) before complying with the subpoena, the person subpoenaed has given the issuing party notice that substantial loss or expense would be incurred in properly complying with the subpoena, including a particularised estimate of the loss or expense; and (c) the court is satisfied that substantial loss or expense is incurred in properly complying with the subpoena.

(2) Unless the court otherwise directs, the amount of the loss or expense estimated under paragraph (1)(b) is payable by the issuing party.

(3) The court may fix the amount payable having regard to the scale of fees and allowances payable to witnesses in the Supreme Court of the State or Territory where the person is required to attend.

(4) The amount payable is in addition to any conduct money paid.

(5) If a party who is to pay an amount under this rule obtains an order for the costs of the proceeding, the court may:

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(a) allow the amount to be included in the costs recoverable; or (b) make any other order it thinks appropriate.

22.

Rule 6.27 places limits on what requests for subpoenas can be made and when. In summary: i. a self-represented party requires leave or permission of the court to issue a subpoena of any kind at any stage of proceedings; ii. a represented party to a proceeding, including the ICL, must seek leave to issue a subpoena of any kind, except that: a represented party is able to request the issue of up to five subpoena to produce documents without leave of the court for a hearing relating to an interlocutory order as defined in Rule 1.05. 4 an ICL is able to request the issue of any number of subpoena to produce documents without leave of the court for a hearing relating to an interlocutory order as defined in Rule 1.05.5

23.

A person or entity served with a subpoena to produce documents should produce the documents, unless they make application to set aside the subpoena prior to the date for production of the documents to the court.

24.

It is important to distinguish between objecting to producing documents and objecting to persons or parties inspecting or copying documents. This distinction is probably blurred because under the Rules, the same Notice of Objection is to be used for each. This seems to cause some confusion, in my view, amongst practitioners.

25.

It must be impressed that the subpoenaed party may be objecting to production or inspection, and it is critical that the Notice of Objection is clear as to which.

Applications to set aside and objections to production

26.

If a person served with a subpoena for production of documents says the subpoena should be set aside as an abuse of process and seeks to be excused from production of the documents, the best practice is to make an application in a proceeding, supported by affidavit. On such application, the person who seeks to set the subpoena aside may be legally represented for this purpose and at the time of the subpoena production hearing.

27.

A party served with a subpoena to produce may choose to produce some documents but not others.

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28.

A person served with a subpoena to produce documents should produce the documents if they simply object to inspection of them by parties or persons. In this instance the Notice of Objection should be filed when the documents are produced to the court.

29.

A party to the litigation, the person served with the subpoena to produce, and any person with a legitimate interest in the proceedings may make application to set aside a subpoena on the grounds that it is an abuse of process. 6

30.

Some instances where a subpoena may be set aside as an abuse of process have been found to be as follows: Where it has been served in the absence of bona fides; Where it is oppressive as it is used as a substitute for discovery or an attempt to obtain discovery from a non-party, or it is sought to be used as an alternative to a statutory procedure; Where the issue of the subpoena is premature, meaning issued prior to crystallisation of the issues e.g. MacBryan v Brooke [1946] 2 All ER 668; Where all documents described were subject to legal privilege. 7

31.

Despite the various bases upon which subpoenas to produce documents may be set aside, the following are not grounds for setting aside a subpoena: Where it is claimed that a person has a privilege against self-incrimination, and the court held that no risk of self-incrimination can arise from the mere production of documents in answer to a subpoena, because the documents are produced to the court. 8 Where an arbitration is conducted on terms of confidentiality, and it was claimed that production would do irreparable harm to a customer of a bank. 9

32.

Once an application to set aside is made, it will be listed before a Judicial Registrar or a Judge. The court will satisfy itself that the relevant parties with an interest have been served and then invite the objecting party to adduce any evidence it relies on and make submissions.

33.

Depending on the basis for objection, the process may be somewhat different thereafter, but other interested parties should be given a right to make submissions in response.

34.

If the party served with the subpoena has made an application to set the subpoena

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Bank

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or used the Notice of Objection to object to production, the court may not have received the documents. In this case, it would usually be necessary to make directions for the subpoenaing party to file affidavit material in response and have opportunity to make submissions. This may mean that the ruling on the objection to production will be deferred to an adjourned date to finalise the subpoena hearing.

Alternatively, at the discretion of the judicial officer dealing with the matter, directions may be made in Chambers prior to the listed hearing. For example, if the objection to production is claimed oppression because at face value the party served has to make an extensive search which is beyond reasonable resources and justification.

Objection to inspection and copying only 35.

If the documents have been produced to the court by a subpoenaed party, but are the subject of objection to inspection, by the person who produced the records or another interested party, the judicial officer may examine the document(s) before ruling on the objection. If he or she thinks it proper, an order will then be made that the parties inspect only, inspect and copy and/or be tendered in evidence.

36.

In this instance, the Notice of Objection form provided for under the Rules should be used. On filing of the Notice a return date will be allocated for the subpoena objection hearing. The Notice of Objection should be served by the party who filed it on all interested parties.

37.

At the hearing of the Notice of Objection, parties appearing will be given opportunity to make submissions. It may be necessary for the court take evidence but usually a ruling will be given on the basis of submissions alone.

38.

An order for inspection/copying may be made subject to conditions or on terms because it is at the discretion of the court. The court has power to make orders in relation to who has access to the documents, when access is given who may copy them. The orders made for inspection and copying will vary according to the nature of the documents, the nature of the proceedings, the identity of the person producing the documents and the parties to the proceedings who seek to inspect and copy.

39.

On a hearing of a Notice of Objection to inspection and/or copying after being satisfied of service of the Notice of hearing, the enquiry by the court will be whether the documents have apparent relevance to the issues in the proceedings. If there is apparent relevance, ordinarily, the party who issued the subpoena will inspect first, then followed by the other parties.

40.

When making orders about inspection and copying of documents produced, the court will be concerned with the overriding object of the proper conduct of the litigation, limiting invasion of personal rights not connected to the dispute, ensuring that the documents are relevant, and that both parties have been afforded

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procedural fairness in relation to the documents if they are to be tendered in evidence.

41.

Although it is usual for leave to inspect and copy to be granted, it is not an automatic right. 10 Depending on the nature of the documents produced, the court may defer granting leave until a later date 11 or the commencement of the trial.12

42.

Further, depending on the nature of the documents, inspection may be limited to the parties’ legal advisers or independent experts. For example, in Kimberly Mineral Holdings Ltd (in liquidation) v McEwen [1980] 1 NSWLR 210.

43.

A party who is permitted inspection of document(s) produced under subpoena is not entitled to use them or the information in them for a purpose not connected with the proceedings in which the documents were produced. An exception to this is that if the document is read into evidence in open court as the implied undertaking at common law is taken to have been waived. 13

44.

Although the court has power to inspect the documents produced, whether it does so before making a ruling is a matter for the court.

45.

An example of a case where the court is likely to inspect documents, is where the basis for objection is public interest immunity. A helpful authority is R v Saleam (1989) 16 NSWLR 14 at 18.

46.

On occasions, objection to inspection/copying may be taken on the basis of documents claimed to be “confidential”. In such instances, the court may impose conditions limiting who is to inspect and copy, to preserve confidentiality. An example of this is B & N [1994] 35 NSWLR 140 at [147], where inspection and copying was limited to solicitor and counsel for a party and an expert witness.

47.

In the context of parenting proceedings coming before the FCFCOA, police authorities may take objection to production or inspection of documents which are obtained in confidence. For example, from a vulnerable complainant, a mandatory reporter or an informant to alleged criminal activity. In these examples, in my view objection to production is not usually legitimate if the relevance of the document(s) are apparent, but conditions around inspection and copying may well be proper and necessary. This may include an order for redacting of parts of the document(s).

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48.

It is ultimately for the court to decide whether the documents are accessed and on what conditions and usually this will be best determined after inspection of the documents.

49.

A common ground for objecting to inspection of documents is privilege. For example, legal professional privilege, privilege against self-incrimination, privilege relating to without prejudice communications, a statutory privilege relating to a criminal informer or whistleblower, or confidential communications contained in medical or counselling records.

50.

For all these examples, a consideration for the court on an application objecting to production or inspection is whether the privilege has been waived either intentionally or by implication. In the context of family court proceedings, the decision in Stamp [2007] FamCA 420 is on point regarding waiver and worth reading.

Other useful authorities in the family law jurisdiction

51.

A useful and interesting authority that displays the practical application of legal principles about subpoenas in the family law jurisdiction is Rigby & Kingston (No. 3) [2021] FamCA 146 from [46].

52.

The approach to inspecting and copying confidential psychological records was the subject of Riemann & Riemann [2017] FamCA 318. In the circumstances of that case, the court said the records were relevant but privacy of the children, avoiding harm to the therapeutic relationship and best interest considerations required that the Independent Children’s Lawyer have first right of access to the subpoenaed documents to redact material not relevant to the proceedings.

53.

Rule 6.37 permits automatic rights to inspect and copy documents produced under subpoena if notice of objection has not been given. But, this automatic right does not apply to “child welfare record, criminal record, medical record or police record.”

Accordingly, leave to inspect and copy records of this nature will be required.

Prepared by Judge Sandra Taglieri with reference to: Gerard B Cater, Subpoena Law and Practice in Australia (Blackstone Press, 1996).