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 |
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…
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- Case
- [2007] FamCA 561
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Full Court was whether the subpoena, which sought documents that were subject to legal professional privilege, should be upheld. Specifically, the Court had to determine if the privilege had been waived by Mr. Andrews, and if not, whether there were any exceptions to the privilege that would permit the disclosure of the documents. The Court also considered the principles governing the issuance and setting aside of subpoenas in such circumstances.
The Full Court reasoned that legal professional privilege protects confidential communications made for the dominant purpose of giving or receiving legal advice. It held that the privilege had not been waived by Mr. Andrews, as his conduct did not demonstrate an intention to abandon the privilege. Furthermore, the Court found no basis for any exceptions to the privilege to apply. Consequently, the Full Court concluded that the subpoena should not have been issued in its current form, as it sought privileged material. The Court therefore ordered that the subpoena be set aside.
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