Anton and Malitsa - [2009] FamCA 70

FAMILY COURT OF AUSTRALIA

ANTON & MALITSA [2009] FamCA 70

FAMILY LAW – SUBPOENA - Objection by practitioner to production of client financial records – Review of the decision of the Registrar

Family Law Act 1975 (Cth)

Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250
Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98
Commissioner of Railways v Small (1938) 38 SR (NSW) 564

Hatton v Attorney General (Cth) & Ors (2000) 26 Fam LR 570
National Employers’ Mutual General Association Limited v Waind & Hill [1978] 1 NSWLR 372

APPLICANT: Mr Anton

RESPONDENT: Ms Malitsa

FILE NUMBER: DGF 928 of 2005

DATE DELIVERED: 10 February 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 6 February 2009
REPRESENTATION

COUNSEL FOR THE APPLICANT: MR HOULT

SOLICITOR FOR THE APPLICANT: TAUSSIG CHERRIE & ASSOCAITES

COUNSEL FOR THE RESPONDENT: MR LENNON

SOLICITOR FOR THE RESPONDENT: LENNON MAZZEO

Orders
(1)That the firm Lennon Mazzeo produce to the Registrar the documents lettered (a), (b), (c), (d) and (e) set out in the subpoena filed on 4 December 2008 by 4.00pm on 20 February 2009 and that they be thereafter released pursuant to these orders for inspection and copying by the solicitors for the husband.
(2)That paragraph 3 and 4 of the orders of Registrar Sikiotis made on 18 December 2008 be set aside.
(3)That any dispute between the parties as to the costs of these proceedings and the costs and expenses of the production of the said documents be determined as part of the forthcoming trial between the parties.
(4)That with respect to Orders 7, 8 and 9 of the orders made on 3 November 2008, the date “11 March 2009” be inserted in lieu of “13 February 2009”.
(5)That in respect of Order 10 of the orders made on 3 November 2008, the date “25 March 2009” be inserted in lieu of “27 February 2009”.
(6)Should either party request the production of further documents by way of discovery:
(a) such request be made in writing by no later than 20 February 2009;
(b)compliance with or an explanation in writing as to non-compliance, take place no later than 27 February 2009; and
(c)“compliance” means providing the other party with a photocopy of the requested documents.

IT IS NOTED that publication of this judgment under the pseudonym Anton & Malitsa is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE
FILE NUMBER: DGF 928 of 2005

MR ANTON
Applicant
And

MS MALITSA
Respondent
REASONS FOR JUDGMENT
1.On 4 December 2008, the solicitors for the husband filed and the Court issued, a subpoena to the managing partner of the firm of solicitors for the wife to produce documents. The demand read:
In relation to [MS MALITSA] (formerly [ANTON]) (“[the wife]”) born […] May 1953 the following books, documents and things:-
(a) Trust account ledger records;

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.

Continue reading Anton and Malitsa

Details

AGLC: Anton and Malitsa [2009] FamCA 70
Case: [2009] FamCA 70
Decision Date: 10 February 2009

CaseChat Overview and Summary

In the matter of *Anton and Malitsa*, heard before Justice Cronin, the dispute concerned the production of documents pursuant to a subpoena. The husband sought the production of specific documents from a firm, Lennon Mazzeo, which were relevant to the proceedings.

The court was required to determine whether the firm Lennon Mazzeo should be compelled to produce the documents specified in the subpoena. Additionally, the court considered the setting aside of certain orders made by a Registrar, the resolution of costs disputes, and the amendment of dates for future discovery obligations.

Justice Cronin ordered that Lennon Mazzeo produce the specified documents to the Registrar for inspection and copying by the husband's solicitors. The court also set aside paragraphs 3 and 4 of the Registrar's previous orders. The costs associated with these proceedings and the production of documents were to be determined at the forthcoming trial. Furthermore, the court amended specific dates within existing orders relating to discovery, setting new deadlines for the production of documents and responses to requests for further discovery.

Orders

Orders of the court

(1) That the firm Lennon Mazzeo produce to the Registrar the documents lettered (a), (b), (c), (d) and (e) set out in the subpoena filed on 4 December 2008 by 4.00pm on 20 February 2009 and that they be thereafter released pursuant to these orders for inspection and copying by the solicitors for the husband.

(2) That paragraph 3 and 4 of the orders of Registrar Sikiotis made on 18 December 2008 be set aside.

(3) That any dispute between the parties as to the costs of these proceedings and the costs and expenses of the production of the said documents be determined as part of the forthcoming trial between the parties.

(4) That with respect to Orders 7, 8 and 9 of the orders made on 3 November 2008, the date “11 March 2009” be inserted in lieu of “13 February 2009”.

(5) That in respect of Order 10 of the orders made on 3 November 2008, the date “25 March 2009” be inserted in lieu of “27 February 2009”.

(6) Should either party request the production of further documents by way of discovery:

(a) such request be made in writing by no later than 20 February 2009;

(b) compliance with or an explanation in writing as to non-compliance, take place no later than 27 February 2009; and

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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