Andrews v Andrews (Re: Subpoena) - [2007] FamCA 561

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] FamCA 561
Decision Date: 8 June 2007

CaseChat Overview and Summary

The Full Court of the Supreme Court of Western Australia heard an appeal concerning a subpoena issued in proceedings between the appellant, Mr. Andrews, and the respondent, Mrs. Andrews. The dispute arose in the context of divorce proceedings, where Mr. Andrews sought to set aside a subpoena issued to his solicitor, requiring the production of documents relating to the financial affairs of a company in which Mr. Andrews held a significant interest.

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.

Orders