Andrews v Andrews (Re: Subpoena)
[2007] FamCA 561
•8 June 2007
FAMILY COURT OF AUSTRALIA
| ANDREWS & ANDREWS (RE: SUBPOENA) | [2007] FamCA 561 |
FAMILY LAW - PRACTICE AND PROCEDURE – Subpoenas – Application by the husband (a self-represented litigant) for leave to issue a subpoena to the Proper Officer, National Transcription Services Pty Ltd requiring the production of the transcripts of two prior hearings – Rule 15.18 Family Law Rules 2004 – The husband could not afford to pay for the transcripts and was attempting to obtain them without payment for the purposes of his appeal – Not a proper purpose of the issue of a subpoena – Application dismissed.
FAMILY LAW - PRACTICE AND PROCEDURE – Oral application by the husband for the Court to provide him with the transcripts of two prior hearings free of charge for the purpose of inclusion in his appeal books – No provision in the Family Law Act 1975, Family Law Regulations 1984 or Family Law Rules 2004 requiring or empowering the Court to provide transcript to an appellant for that purpose – Application dismissed.
FAMILY LAW - COSTS – Cost reserved as costs in the appeal.
| Family Law Rules 2004 Family Law Act 1975 Family Law Regulations 1984 |
Zabaneh v Zabaneh (1991) FLC 92-239
M & M & E [2000] FamCA 1688
S & E (unreported, Family Court of Australia, Lindenmayer, Finn & Gee JJ, 19 December 1994)
S & S (unreported, Family Court of Australia, Lindenmayer, Kay & Gee JJ, 20 June 1994)
WJD v TEK (1998) 72 ALJR 1323
APPLICANT: Mr Andrews
RESPONDENT: Mrs Andrews
FILE NUMBER: PAF 4046 of 1994
APPEAL NUMBER: EA 04 of 2006
| DATE OF ORDERS | 7 February 2006 |
| DATE OF PUBLICATION OF REASONS FOR ORDERS: | 8 June 2007 |
PLACE DELIVERED: Sydney
JUDGMENT OF: Bryant CJ, Finn and Boland JJ HEARING DATE: 7 February 2006
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 December 2005 |
REPRESENTATION
| ADVOCATE FOR THE APPELLANT: | Mr Andrews appeared in person |
| COUNSEL FOR THE RESPONDENT: | Ms Pearson (solicitor) |
| SOLICITOR FOR THE RESPONDENT: | Pearson Family Lawyers |
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Andrews v Andrews (Re: Subpoena).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
APPEAL NUMBER: EA 04 of 2006
FILE NUMBER: PAF 4046 of 1994
| Mr Andrews |
Applicant
And
| Mrs Andrews |
Respondent
REASONS FOR JUDGMENT
On 7 February 2006 this Full Court made orders dismissing an application by Mr Andrews for leave (pursuant to r 15.18 of the Family Law Rules 2004) to issue a subpoena to The Proper Officer, National Transcription Services Pty Ltd, for the production of the transcripts of proceedings before Waddy J on 10 November 2005 and Halligan JR on 20 and 21 July 2005.
In our orders we also dismissed an oral application by Mr Andrews for the court to provide him with the transcripts of the proceedings before Waddy J and Halligan JR.
The application for leave to issue the subpoena and the oral application for the provision of transcript by the Court were made in relation to a pending appeal which Mr Andrews had instituted against orders made by Waddy J on 22 December 2005 in proceedings in which his Honour reviewed the decision of Halligan JR given on 21 July 2005.
We reserved the costs of the applications dismissed by us on 7 February 2006 as costs in that appeal.
The precise terms of the orders made by us on 7 February 2006 were:
1. That the application for leave to issue a subpoena be dismissed.
2.That to the extent that there was an oral application by the husband for the Court to provide the transcript of the proceedings before the Honourable Justice Waddy on 10 November 2006 and before Judicial Registrar Halligan on 20 and 21 July 2005, that application be dismissed.
3.That the costs of and incidental to these applications be reserved as costs in the appeal.
These are our reasons for those orders.
Background
On 20 and 21 July 2005 Halligan JR heard an application by Mr Andrews for leave under s 44(3) of the Family Law Act1975 to institute proceedings against his former wife for spousal maintenance. Leave to institute such proceedings was necessary under s 44(3) because more than twelve months had elapsed from the date of the decree nisi for the dissolution of the parties’ marriage.
On 21 July 2005 the Judicial Registrar delivered reasons for judgment and made orders dismissing Mr Andrews’s application for leave to institute spousal maintenance proceedings and requiring him to pay the wife’s costs.
On 19 August 2005 Mr Andrews filed an application which in effect sought a review of the Judicial Registrar’s orders. That application (albeit apparently in amended form filed on 10 November 2005) was heard by Waddy J on 11 November 2005.
On 22 December 2005 Waddy J delivered lengthy reasons for judgment and made the following orders:
1. The husband’s application in a case to set aside the orders of Halligan JR made on 21 July 2005 is dismissed.
2.The orders of Halligan JR made 21 July 2005 remain in force and effect.
3.Each of the husband’s applications and amended applications for leave under Section 44(3) of the Family Law Act and to bring spousal maintenance proceedings is dismissed.
…
4.[Mr Andrews], who instituted the above proceedings shall not, without leave of a court having jurisdiction under this Act, institute any further proceedings under this Act in relation to:
(i)the alteration of property rights; and/or
(ii)the payment to him of any sum or sums by way of spousal maintenance; and/ or
(iii)any other relief sought against the wife under the Family Law Act.
5.The costs of the parties are reserved.
On 9 January 2006 Mr Andrews filed a notice of appeal against all orders made by Waddy J on 22 December 2006. The grounds contained in the notice of appeal were as follows:
1. All grounds of appeal,
2.The Orders made by Waddy J., (copy attached) went beyond moderation, the judge exepted [sic] the fact that my endeavours had created a wealthy woman in the shape of my ex-wife
3.The judge failed to take into account my needs
4.The right to claim spousal maintenance under the Act is granted by Section 72(1). It reads:-
A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:-
(a) n/a
(b) by reason of age or physical or mental incapacity for appropriate gainful employment, or
(c) for any other adequate reason.
5.The appellant is going on 81 years, has chronic rheumatism
6.The appellant is expected to exist on $12,000 per year (approx. $250 per week) veteran pension, I cannot survive on this meagre allowance
7.The ex-wife controls between $1.3 and $1.5 million assets accrued by the husband
8. The husband has no fixed abode, and is sleeping wherever he can lay his head
9.The discovery of the truth should be the ultimate purpose of the legal system, if hearings are really determined to find the truth, seems to confirm the Family Court should have lay judges, as in Europe, to explain the facts to the judges.
On or about 13 January 2006 Mr Andrews requested the Appeal Registrar to issue a subpoena directed to The Proper Officer, National Transcription Services Pty Ltd, requiring production of the transcripts of the hearings before Halligan JR and Waddy J.
Because Mr Andrews was a self-represented litigant, he required leave to issue a subpoena pursuant to the provisions of r 15.18 of the Family Law Rules 2004. The Registrar determined that the matter of leave to issue the subpoena should be listed before a Full Court.
Thus it was that the matter came before this Full Court on 7 February 2006. On that occasion, Mr Andrews appeared on his own behalf and his former wife was represented by her solicitor.
The subpoena issue
At the commencement of the hearing on 7 February 2006 we explained to Mr Andrews that the company, National Transcription Services Pty Ltd, which records the proceedings of this court at the Parramatta Registry where the proceedings before Waddy J and Halligan JR were heard, would not transcribe the recordings of those proceedings (thereby creating documents which could be supplied in response to the subpoena) and provide such transcripts without payment.
Mr Andrews confirmed that because of his difficult financial circumstances, he could not afford to pay for the transcripts and that his purpose was to try to obtain the transcripts without payment. We were of the opinion, which we conveyed to Mr Andrews at the hearing, that this was not a proper purpose of the issue of a subpoena. Accordingly we proposed to dismiss, and did ultimately dismiss, his application for leave to issue the subpoena.
Provision of transcript by the court
However it emerged in our discussions with Mr Andrews in relation to his application for leave to issue the subpoena to the transcription company, that the real issue for him was whether the Court would be prepared to provide him with the transcripts in question for purposes of his appeal. We therefore proceeded on the basis that we had before us an oral application by Mr Andrews that the Court provide him with the transcripts of the hearings before Waddy J and Halligan JR.
There is no provision in the Family Law Act 1975 or in the Family Law Regulations 1984 or the Family Law Rules2004 which requires or even empowers the Court to provide transcript to an appellant free of charge for the purpose of inclusion in the appeal books. Indeed, as will be seen, the relevant provisions of the Rules are to the contrary and place the obligation to obtain transcript on the appellant (or in some cases, a cross-appellant):
22.23 The appellant or, if so ordered, the cross-appellant must arrange to obtain the relevant parts of the transcript of the hearing within 28 days after the procedural hearing.
Note A party may apply for an extension of time to comply with rule 22.23 (see rule 1.14).
22.24 (1) The appellant is responsible for preparing the appeal books.
(2)If a Judge or Regional Appeal Registrar is satisfied that preparing the appeal books would impose exceptional hardship on the appellant, the Judge or Regional Appeal Registrar may order either of the following people to prepare the appeal books:
(a) a respondent;
(b) the Appeal Registrar.
Note If the Appeal Registrar prepares the appeal books, the appellant or cross-appellant (if so ordered) is still responsible for obtaining the transcript (see rule 22.23).
(3) When making an order under subrule (2), the court may order the appellant to pay the costs of preparing the appeal books.
(4)The party responsible for filing the appeal books must, within 56 days after the procedural hearing, file and serve the appeal books.
Note 1 The party filing the appeal books must file and serve the number of copies ordered to be filed (see paragraph 22.20 (d)). The number to be filed will include enough copies for each member of the Full Court. In addition, the number required to be served will be 2 copies for each other party.
Note 2 A party may apply for an extension of time (see rule 1.14).
Note 3 If a party fails to comply with the requirements for filing and serving the appeal books, the appeal is taken to be abandoned (see rule 22.56).
Referring to the equivalent provisions in the former Rules (being Order 32 rules 13 and 15), Joske J held in Zabaneh v Zabaneh (1991) FLC 92-239 at 78,630:
It is clear, that the financial assistance that is available to litigants under the Act and Rules is limited to remission of fees in certain specific circumstances. It does not extend to providing transcript at the expense of the court where a litigant is unable to meet this financial responsibility.
(See also the decisions of the Full Court of this court in M & M & E [2000] FamCA 1688; S & E (19/12/1994); S & S (20/6/1994)).
Order 32 rules 13 and 15 were considered by the High Court in an application for special leave to appeal in WJD v TEK (1998) 72 ALJR 1323. In the course of his reasons for refusing special leave to appeal, McHugh J (with whom Callinan J agreed) observed:
4. In the brief proceedings in the Full Court which ultimately led to the dismissal of the appeal, the only question that was discussed was whether the Full Court could order the provision of a transcript free of charge. The court took the view that it had no such power. There is no reason as at presently advised to doubt the correctness of that view.
It should however be noted that while agreeing with McHugh J that special leave to appeal should be refused in that case, Kirby J relevantly observed:
7.In a proper case, this Court would, in my view, allow special leave to appeal to consider a refusal on the part of the Family Court of Australia to exercise its suggested discretion to:
1.Waive strict compliance with its rules relating to the filing of transcript in an appeal;
2.Order the provision of a transcript by Auscript if that were required in the interests of justice;
3.Dispense with filing of appeal papers in a formal sense; or
4.Ensure that officers of the Family Court gave assistance to a party to prepare the appeal papers where it would impose hardship on the appellant to do so. [See Family Court Rules, r 15(2).]
8.Rules of Court are the servants and not the master of the attainment of justice in our courts, as has been often said. [Clune v Watson [1882] Tarl 75; Bay Marine v Clayton Country Property (1986) 8 NSWLR 104 at 108]. It cannot be for the Executive or its agencies by the provision of funds for legal aid, or otherwise, effectively to control access to the appellate process of the courts and, in particular, the courts established under Ch III of the Constitution.
9.However, I agree that this case is not an appropriate vehicle to allow any of the foregoing issues to be considered. The findings of the primary judge were very strong. They appear to render the prospects of success in an appeal very small indeed. The applicant also indicated that he would wish to call new evidence in an appeal and that would rarely be allowed. …
It will then be seen that the majority High Court view (at least as then presently advised) was that the Full Court of this Court had been correct in concluding that there was no power in the Court to order the provision of transcript to a litigant free of charge.
However even on the basis that the observations by Kirby J have substance, the present case was not, in our view, one in which the Court would order that transcript should be provided to the appellant at the expense of the Court. We took this view for the following reasons.
First, we were informed by the solicitor for the respondent wife that no oral evidence was given before Waddy J with only oral submissions being made to his Honour; Mr Andrews did not assert to the contrary.
Secondly nothing in the grounds of appeal (which we have earlier set out), nor in Mr Andrews’ pre-argument statement (filed on 13 January 2006), nor in the reasons for judgment of Waddy J, provided any indication that a transcript of the proceedings before his Honour, or indeed before Halligan JR, would be needed to enable the appeal to be determined.
For these reasons we were not prepared to depart from the usual rule that this Court does not provide transcript free of charge to litigants for the purposes of an appeal (assuming but certainly not deciding that a power exists to so order), and accordingly Mr Andrews’ application for the provision of transcript was dismissed.
I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of this Honourable Full Court
Associate:
Date: 8 June 2007
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