CASEWATCH – Is it a fishing expedition? Considerations by the Full Court with respect to subpoenas

Vissell & Vissell [2021] FamCAFC 76

By Monique MacRitchie, Joy Dehaini & Jessica Cinar

A subpoena is a legal document which orders a person to provide documents or give evidence at a hearing or trial. Subpoenas can be requested by a party to a case, and the Court issues the order.

In the recent case of Vissell & Vissell [2021] FamCAFC 76 (“Vissell 2021”), the Full Court ¹ of the Family Court of Australia (as it was then called) allowed an appeal against the dismissal of objections to several subpoenas on the basis that they extended beyond the legitimate forensic purpose, thereby a fishing expedition, and were oppressive.

Facts

Mr. Vissell (“the husband”) and Mrs Vissell (“the wife”) were involved in property settlement proceedings. Together, the parties engaged a forensic accountant to conduct a full valuation of the husband’s business affairs. Having conducted an initial review of the documents provided to him, the accountant sought further information to enable him to provide a full assessment.²

After meeting with the parties, the wife issued subpoenas to eight entities to produce documents. The subpoenas were issued on the basis that they would assist the accountant to provide a full report to the Court.

At first instance, all eight subpoenas were objected to.³  The grounds of objection included:⁴

1. Relevance of the documents to the proceedings,
2. The exercise was a mere fishing expedition, and
3. The request was oppressive.

The application for review was filed outside the time prescribed by the rules. The objectors did not file an application to extend the time to bring the review. For this reason, Justice Loughnan decided there was no application to be heard and it “was the end of the matter”. Nevertheless, he went on to express his opinion and dismissed each objection to the subpoena.⁵

On Appeal

The objectors of the subpoenas sought an appeal to his Honour’s orders, arguing that his Honour made an error in his discretion by not extending the time to submit a review application. They also argued that Justice Loughnan, in expressing an opinion while failing to extend time of his own motion, was a miscarriage of justice in itself. The appeal was allowed, and the Full Court exercised their power to decide whether the time to submit a review application should be extended or not.

The Law

Before an order is granted for documents to be accessed, the applicant must:

1. Identify a legitimate forensic purpose; and,
2. Establish that the documents will materially assist the case “on the cards”.

Subpoenas must reasonably specify the documents required and cannot legitimately be used for “fishing”, that is, to discover whether she has a case at all, instead of obtaining documents to support her existing case. Further, the named person on the subpoena who is required to provide documents or evidence cannot be a stranger who is not required to make discovery.⁶

Where documents are to be submitted, a subpoena may be set aside if the number of documents is oppressive because the scope of the subpoena is too wide (i.e., large numbers of documents are requested, the task of collation is onerous, and they are not sufficiently relevant).⁷

Evidence before the court must only be that which is relevant to the issues to be determined and that can be tested. In National Employers’ Mutual General Association Ltd v Waind and Hill,⁸ Moffitt P states, “the only legitimate purpose of requiring the production, and permitting the inspection, of the stranger’s documents can be to add, in the end, to the relevant evidence in the case” (emphasis added).⁹

Discussion

In Vissell 2021, the Full Court found that the wife provided an “unambiguous” purpose for seeking the documents.¹⁰ The wife submitted the legitimate forensic purpose for seeking the documents was that the accountant required the documents to consider the profits and operating costs of the husband’s business.¹¹

In receiving the documents, the accountant would be able to determine:

• the worth of the business;
• any dissipated assets; whether profit shifting was occurring in the company;
• why invoices were created on behalf of the husband’s parents’ entities; and
• who the owner of the vehicles used in both the husband’s and husband’s parents’ businesses was.¹²

The wife contended that these dealings were a legitimate enquiry and critical for the accountant to perform his task to assist the court during the settlement.¹³

Extending beyond the established legitimate forensic purpose

The issue before the Court was whether the scope of the subpoenas went beyond the stated purpose.

The Vissell companies submitted that there was “no apparent relevance” between the wife’s stated purpose and the documents she sought. It was argued:

1. the documents requested did not provide information about the business dealings between the Vissell companies and that of the husband or D Pty Ltd, nor did they provide information regarding the operations of D Pty Ltd and the Vissell companies;¹⁴
2. the requests were too broad and likely to cover purchases and transactions which were unrelated to the ‘identifed forensic purpose’¹⁵ and inventory not needed for the purposes sought by the wife;¹⁶ and
3. the subpoenas requested production of all business transaction receipts over a six-year period, a request that was too broad given the volume and nature of the request. This request was too broad because it not only involved the vehicles and trailers in question, but any furniture and all the company’s stock.¹⁷

J Pty Ltd argued that the documents to which they objected being sought had no relevance to the wife’s stated purpose and the request amounted to no more than “fishing”.¹⁸

The objector submitted the subpoenas, therefore, had no legitimate forensic purpose and the terms of the subpoenas were so wide to be oppressive.¹⁹

“On the cards”

It was the wife’s case that the documents were required as “a situation [was] developing in which the husband was creating accounts… using the parents’ company.” She claimed if he was doing it in one entity, then it was ‘on the cards’ that he was doing it with the others. This argument was rejected as it was not influential to the issue at hand and “amounted to nothing more than speculation”.²⁰

Further, the Full Court rejected the argument that saying something is “on the cards” is all that needs to be shown.²¹ The Court confirmed that “there must first be established a clearly particularised legitimate forensic purpose and then that it is “on the cards” that the documents sought would assist that identified purpose”. In this two-step process, the Court must apply special weight not only if the evidence is necessary to the plaintiff/applicant in making their case, but if it is necessary for the defendant/respondent to defend their case, similiar to the process used in discovery.²²

The wife’s subpoenas were deemed unconnected to her identified forensic purpose and therefore not “on the cards”.

Oppression

Ms BB, the solicitor for the objectors, stated in her affidavit the subpoenas “would result in significant expense to the objectors” and lacked connection to the purpose of the matter. The Court agreed, highlighting the terms of the subpoena were so wide as it required the stranger to collect and produce documents which were irrelevant to the litigation.

The subpoenas to the Vissell companies were deemed oppressive and set aside.

Conclusion

A party will not be entitled to access documents where they have issued a subpoena, an objection is made raising the concept of legitimate forensic purpose, and the party cannot show that it is at least “on the cards” that the documents will assist their matter. This is merely a fishing expedition as the subpoena is being used to discover whether there is a case at all, rather than to support well-founded grounds.

¹ Comprising Ainslie-Wallace, Watts and Tree JJ.

² Vissell & Vissell [2021] FamCAFC 76 (“Vissell 2021”), paragraph 5.

³ Vissell & Vissell [2019] FamCA 697 (“Vissell 2019”), paragraph 4.

⁴ Vissell 2019, paragraphs 52, 57, 72, 78 and 103.

⁵ Vissell 2021, paragraph 5.

⁶ Commissioner for Railways v Small (1938) 38 SR (NSW) 564 (“Small case”), Jordan CJ said at 573 and 575:

⁷ National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 (“Waind”), Moffitt P at paragraph 382 (referring to Small case).

⁸ Waind [1978] 1 NSWLR 372.

⁹ Waind, paragraph 384; Vissell 2021, paragraph 51.

¹⁰ Vissell 2021, paragraph 53.

¹¹ Vissell 2021, paragraph 54.

¹² Vissell 2021, paragraph 55.

¹³ Vissell 2021, paragraph 56.

¹⁴ Vissell 2021, paragraph 64.

¹⁵ Vissell 2021, paragraph 65.

¹⁶ Vissell 2021, paragraph 68.

¹⁷ Vissell 2021, paragraph 65 to 68.

¹⁸ Vissell 2021, paragraph 77.

¹⁹ Vissell 2021, paragraph 77.

²⁰ Vissell 2021, paragraphs 84 and 84.

²¹ See Alister v The Queen (1984) 154 CLR 404 (“Alister”) Gibbs CJ.

²² Vissell 2021, paragraph 92, referring to Gibbs CJ in Alister.