Wiltshire News

Wednesday, 2 November 2011

As I have referred in a previous article, there is a concept in Family Law, where disclosure and the issue of Subpoenas are concerned, of “fishing”.

Fishing seeks discovery of documents in the hope that they will reveal relevant evidence without any basis to believe that such evidence exists. In general discovery for this purpose is prohibited[1]. The Court has likened this method of discovery to a person who has no evidence that fish of a particular kind are in a pool, but desires to drag the pool to find out whether any are there[2].

In my prior article, Mr and Mrs Full and Frank Disclosure - The Fine Art of Disclosure, I referenced the case of Wachtel & Sabens[3] however due to the scope and direction of that article, I did not detail the facts and findings of that case in sufficient detail.

The matter involved an objection to several Subpoenas having been issued by one party to various financial institutions used by the other party.

The Applicant in the matter, being the party having filed the Subpoenas, was applying to the Court for a declaration of the existence of a de facto relationship.

The Subpoenas sought “all documents...relating to accounts of...[The Respondent]... and any entity in which he... [had]... an interest”[4].

The Court took issue with the fact that the Subpoenas sought “all documents” and not statements or other specific documents maintained by the financial institutions on behalf of the Respondent.

In answering the Subpoenas, therefore, given their wording the officers of the relevant institutions would have been required to exercise discretion and judgment in determining not only what documents related to the accounts maintained by the Respondent, but also whether the Respondent had an interest in the particular entities.

As a result, the Court found that the Subpoenas were an abuse of process because the terms of the Subpoenas were too wide and accordingly required the financial institutions to undertake tasks that fell beyond what is ordinarily acceptable in answering a Subpoena.

Whilst the Court ultimately set aside the Subpoena on grounds other than that the Subpoenas had been issued by way of a fishing expedition, the Court went on to consider the relevant law, given that had been one of the several grounds by which the Respondent sought to have the Subpoenas set aside.

What is important to note is that in the Federal Magistrates Court of Australia, where the vast majority of Family Law and De Facto Relationship Law matters are litigated, there is a limit on the number of Subpoena that can be issued[5].

It is therefore imperative that parties give careful consideration to the issuing of Subpoena, especially with regard to:

• The number of Subpoenas issued;

• The entities to whom the Subpoenas are issued;

• The documents sought by each Subpoena;

• What is hoped to be achieved in the issuing of the Subpoena; and, most importantly

• How is the evidence sought to be obtained by way of the Subpoena relevant to the issues in dispute in the matter.

If you have concerns about your former spouse or de facto partner hiding evidence in your Family Law or De Facto Matter, please don’t hesitate to contact one of the Wiltshire Lawyers to discuss your options in issuing Subpoenas during the course of your Court proceedings.


Jerome Hey
Family Lawyer
Wiltshire Lawyers

Liability limited by a scheme approved under Professional Standards legislation.

This article should not be considered as either formal or informal legal advice.  This article should only be read as general information relating to the particular subject matter it is written about.  The information may or may not apply to the reader's particular circumstances. Wiltshire Lawyers only purport to provide legal advice to clients who have provided detailed instructions and who have formally retained our services.