Subpoena – Subpoena to banks had a legitimate forensic purpose despite compelling documents beyond the date of the parties’ financial agreement
In Luna [2021] FedCFamC1F 343 (23 December 2021) Hogan J heard a wife’s objections to a subpoena issued at the request of a husband, where the husband sought bank statements to establish non-disclosure by the wife in their financial agreement.
The financial agreement disclosed the wife’s interest in a law firm at a “nominal” value, the husband’s case being that the wife had engaged in non-disclosed dealings that were such that he accepted that value; his ultimately seeking that the agreement be set aside.
The wife objected to the subpoena and argued that the subpoena was superfluous; that it was too wide by seeking documents beyond the date of the financial agreement; and that provision of particulars as to clients of the law firm would result in her breaching s 118 of the Evidence Act 1995 (Cth) and the Australian Solicitors Conduct Rules 2012.
The matter came before Hogan J by way of Review of a Registrar’s decision, where the Registrar had upheld the wife’s objections.
The Court said (from [15]):
“There is … a legitimate forensic purpose, given the husband’s … case. I am not persuaded that there is a lack of apparent relevance in the documents sought. Whether they, in fact, of course, assist the husband to establish the contentions he makes in the substantive proceedings is a matter for the trial. …
( … )
[18] [Queens Counsel for the wife] … focused upon the assertion that, given the contents of the Financial Agreement, the husband agreed that he had the opportunity to seek disclosure; he had a three-month period of time within which he could negotiate; that the obtaining of valuations and the assertion of value is ‘not a science’; and that he had agreed the value of the entity and the trust was ‘nominal’. In essence [Queens Counsel for the wife] … emphasised that, having regard to these terms recorded in the Financial Agreement itself, the husband ought not be entitled, having had what was described as ‘buyer’s remorse’, to now seek the production of further documents.
[19] As already noted … it is clearly established by authority that documents sought in a subpoena must have some relevance to the issues in the proceedings in which the subpoena have issued, and that a lack of apparent relevance will be a sufficient ground to set aside a subpoena. It has also been said … that as long as a subpoena have a legitimate forensic purpose, they will not be set aside. Whilst various authority have outlined a variety of formulations in an attempt to try to more clearly articulate the meaning of ‘legitimate forensic purpose’, that terminology seems to me to be sufficient …
[20] I am not persuaded by the submissions that the documents sought by the husband via the subpoena that had issued, which relate to or post-date the signing of the Financial Agreement, are, by virtue of the fact alone, irrelevant to the proceedings. … [G]iven at least one of the substantive grounds asserted by the husband in support of an order to set aside the Financial Agreement – being that the wife has allegedly engaged in fraud – and that he has allegedly entered into the agreement in circumstances which render the same unconscionable, a legitimate forensic purpose exists in relation to him being able to explore the possibility of transactions which occurred shortly after the Financial Agreement was signed.
[21] … I am not persuaded that there is a legitimate forensic purpose in the husband seeking documents that extend, in a temporal sense, far after the Financial Agreement was executed. Rather, it seems to me that the legitimate forensic purpose could be satisfied if the husband were able to seek the production of documents [up until] … the conclusion of the financial year in which the parties entered into the Financial Agreement.”
As to the wife’s objections as to the law firm’s clients, the Court said (at [24]):
“ … [I]t is appropriate … that the wife be permitted, either personally or via the actions of her legal representatives, to redact from the documents produced by the entity and also from the documents produced by each of the banks, in answer to subpoena if they are subsequently issued, the names of the clients of the practice.”
The Registrar’s orders were discharged; the subpoenas were set aside to the extent that they sought documents beyond 30 June in the financial year that the agreement was signed; and the wife was given liberty to redact the client names of the law firm.