Archer and Archer (No 2)

[2009] FamCA 1059

FAMILY COURT OF AUSTRALIA

ARCHER & ARCHER (NO. 2) [2009] FamCA 1059

FAMILY LAW – Subpoena – Costs

Family Law Act 1975 (Cth)

APPLICANT: Ms Archer

RESPONDENT: Mr Archer

FILE NUMBER: MLC 4481 of 2009

DATE DELIVERED: 27 October 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 27 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Berger

SOLICITOR FOR THE APPLICANT: Berger Kordos Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. I propose to make an order for 4 hours of costs at the scale rate of $771.60.

2. The subpoena is otherwise discharged.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4481 of 2009

MS ARCHER

Applicant

And

MR ARCHER

Respondent

REASONS FOR JUDGMENT

1. This is an application by the solicitors on behalf of the wife for costs in relation to a subpoena and, secondly, by the recipient of the subpoena for his expenses for having complied with the subpoena.  The subpoena was issued by the court to Dr J to produce records arising out of a professional relationship with the husband and the material pursued related to something approximately six years ago.  The details of the subpoena are not relevant, in this particular matter, because of the fact that there has been agreement, on behalf of the wife, today that Dr J has complied with the subpoena. 

2. The argument revolves around the question of the notification by Dr J to the solicitors for the wife that the subpoena had been complied with. I have heard evidence today from Dr J about his travels overseas and the lack of knowledge of what had happened after he made arrangements with the process server for service of the subpoena.   It seems to me, on any view, that there was no knowledge, on the part of Dr J, about the subpoena until 23 September when he received an email advising him that the matter was listed in the judicial duty list on 20 October at 10 am.  There was a warning with that letter indicating that if he did not comply with the terms of the subpoena, a warrant might be sought for his arrest.

3. The matter came on for hearing before me on 20 October and there was no appearance on behalf of Dr J.  What is difficult to work out, on that occasion, is whether or not anyone knew of the fact that on 19 October in the afternoon, Dr J had in fact complied with the subpoena.  The dispute before me today, about which I have heard evidence, relates to whether or not on 19 October a telephone conversation took place between Dr J and someone from the firm of solicitors who had issued the subpoena on behalf of the wife.

4. The evidence of Dr J is that he had a telephone call in which the solicitor queried the question of the lodging of the documents and at her request, he said, he faxed to the firm of solicitors the receipt from the court for the documents.  The issue of that telephone conversation, and the facts, is very much in dispute.  Dr J was unable to tell me who the conversation was with.  I have given him an opportunity today to go away and get the corroborative material and he has, for perhaps commercial and pragmatic reasons, declined to do so.

5. The practitioner responsible for the file indicated that she certainly had a conversation with Dr J and got from him a facsimile copy of the receipt but that was not until 22 October.  She said she made enquiries of her personal assistant and there was no indication of that person having had any conversation with Dr J on 19 October.  Similarly, enquiries she made of the office practice show no documents being received in the matter, on 19 October, by facsimile transmission.

6. I have to determine any of these matters on the balance of probabilities.  It is not a matter of finding someone is not telling the truth but rather which of the two versions is more probable to be correct.  In this case, I find that it is more probable than not that there was no conversation or facsimile transmission on 19 October.   That then gives rise to the fact that the solicitors applied for a warrant on 20 October and, as I have recorded previously in reasons, I declined to do so because I was concerned about personal service on Dr J. 

7. I made an order on 20 October directing that Dr J attend personally and that certain notification be given to him about the hearing today.  I ordered the solicitor for the wife to provide to Dr J a letter setting out the precise details of what the costs claim, if any, would be and, I am told by Mr Berger on behalf of the wife, that that has not been done.  In respect of Dr J’s appearance today, he has told me that he was not sure why he had to be here because he provided the documents on 19 October and as a result of today he has lost $880 for his half day and $1600 plus GST if he is here for a full day. 

8. In hindsight, having regard to the fact that he had not produced any evidence of the fact that he did make the call on 19 October,  I declined to give him his expenses.  That then gives rise to the question of an application for costs against Dr J by the solicitors for the wife because they appeared on 20 October, oblivious to the fact that the documents had been filed on 19 October.  The difficulty I have with that is that no inquiries appear to have been made on the morning of 20 October about whether or not the documents were filed.

9. It seems to me that that should have been done but this is one of those cases where I am not prepared to say that that was an improper course or an impracticable course.  It may very well have been that had the documents been filed on 19 October, and inquiries made, the court records may not have shown them being listed on the computer until the following day anyway.   Under those circumstances, I think the solicitors did what they had to do and are entitled to their costs for the hearing of 20 October and, as a consequence of what has happened, their costs for the day.  However, I propose to only give the scale costs of one hour on 20 October and the question of the costs of today will be, obviously, more. 

10. Having regard to what has occurred, I think the costs today, in terms of the exercise of discretion, should be no more than three hours in total. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  10 November 2009