Bach and Allison and Anor

FEDERAL CIRCUIRT COURT OF AUSTRALIA

BACH & ALLISON & ANOR [2013] FCCA 661

Catchwords:
FAMILY LAW – Issue of subpoena to non-party – whether seeking discovery – whether failure to give adequate discovery caused the issue if the subpoena – nature of discovery considered.

Legislation:
Federal Circuit Court Rules 2001, rr.15A.10, 15A.11

Cases cited:
Waind v Hill and National Employers’ Mutual General Association Ltd [1978] 1 NSWLR 372

Applicant: MR BACH

Respondent: MS ALLISON

Other Party: MS M & CO PTY LTD

File Number: MLC 4580 of 2011

Judgment of: Judge F. Turner

Hearing date: 4 June 2013

Date of Last Submission: 4 June 2013

Delivered at: Melbourne

Delivered on: 4 July 2013

REPRESENTATION

Counsel for the Applicant: Mr Hall

Solicitors for the Applicant: Gibsons Solicitors

Counsel for the Respondent: Ms Wald

Solicitors for the Respondent: Vernon Da Gama & Associates

Counsel for the Other Party: Mr Guthrie

Solicitors for the Other Party: Whitehead Summons Lawyers

Solicitors for the Independent Children’s Lawyer: Westminster Lawyers

ORDERS

1. The husband and wife each pay $1,989.81 to Ms M & Co Pty Ltd within 14 days.

2. The application for costs against the wife’s solicitor is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4580 of 2011

MR BACH

Applicant

And

MS ALLISON

Respondent

MS M & CO PTY LTD

Other Party

REASONS FOR JUDGMENT

1. This decision relates to an application by the husband’s accountant Ms M & Co Pty Ltd for costs against the wife and her solicitor, for work allegedly resulting from the wife causing a subpoena duces tecum to be issued to Ms M & Co.

2. In the alternative, the application for costs is against the husband, who it is said, made the subpoena necessary because he failed to give adequate discovery and provide all relevant documents to the wife for inspection.

3. The wife sought discovery from the husband and was provided access to documents that she and her solicitor inspected on 31 August 2011 and 1 September 2011.

4. On 15 March 2012, the wife’s solicitor caused the subpoena duces tecum to be issued to Ms M & Co requiring production of further documents.

5. On 4 June 2013, the Court ordered the wife’s solicitor to prepare a schedule listing the documents provided for inspection, compared with the documents sought under the subpoena. The schedule was prepared by the wife and is Exhibit “IA-21” to her Affidavit filed 7 June 2013.

6. Details of some documentation held by the husband are included in Exhibit “IA-5” (Ibid). The wife’ solicitor’s responded that documents set out in “IA-5” were incomplete and requested further discovery (Ibid Exhibit “IA-6”).

7. At [16] of the Affidavit [Ibid], the wife sets out further documents she wanted discovered. They are listed precisely.

8. Orders were made on 10 November 2011 for further discovery by the husband. The wife deposes that the husband failed…