Brook and Brook and Anor - [2016] FamCA 322

FAMILY COURT OF AUSTRALIA

BROOK & BROOK AND ANOR

[2016] FamCA 322

FAMILY LAW – COSTS – Where a subpoenaed party seeks costs of compliance – consideration of rule 15.23 of the Family Law Rules 2004 – where subpoenaed party asserts it incurred substantial loss or expense in complying – where costs incurred by subpoenaed party exceeded conduct money – where costs of compliance were not found to be reasonable – failure to establish substantial loss or expense as a result of compliance – interim orders made that the application for costs be dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Markoska & Markoska and Anor [2011] FamCA 833
Moriarty & Moriarty [2009] FamCA 369
W Companies & George and Anor [2015] FamCA 31

APPLICANT:

Ms Brook

RESPONDENT:

Mr Brook

INTERVENOR:

RR Pty Ltd

FILE NUMBER:

MLC

11123

2013

DATE DELIVERED:

6 May 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

4 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Weil

SOLICITOR FOR THE APPLICANT:

Williams Winter

COUNSEL FOR THE RESPONDENT:

Ms Byrnes

SOLICITOR FOR THE RESPONDENT:

Carew Counsel

COUNSEL FOR THE INTERVENOR:

Mr Karalus

SOLICITOR FOR THE INTERVENOR:

TurksLegal

Orders

IT IS ORDERED THAT:

The oral application made on behalf of the RR Pty Ltd seeking conduct costs of complying with the subpoena issued by the husband on 21 October 2015 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Brook & Brook and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11123 of 2013

Ms Brook

Applicant

And

Mr Brook

Respondent

REASONS FOR JUDGMENT

On 19 October 2015 I made an order in chambers that the father have leave to issue a subpoena to produce documents directed to the Proper Officer of RR Pty Ltd (“the RR Pty Ltd”). The subpoena which was issued on 21 October 2015 sought the production of the following documents:
All files, notes, reports, records, communications and other documents pertaining to policy number … claim number … including but not limited to the insured party’s initial application for insurance.
The subpoena together with the required conduct money was received by Mr SS of the RR Pty Ltd on 26 October 2015 who thereafter instructed Mr Benjamin Karalus of TurksLegal to act on behalf of the RR Pty Ltd as deposed by Mr Karulus in his affidavit affirmed 4 November 2015 “in relation to their compliance with the subpoena and their obligations and rights under the subpoena and its scope.”
Mr Karalus deposed at paragraph 3 of his affidavit affirmed 4 November 2015 that on 26 October 2015 he reviewed the subpoena and his client’s file in order to advise his client as to its obligations with respect to the subpoena and the options open to it in relation to the production of documents pursuant to that subpoena.…

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 Brook and Brook and Anor

Details

AGLC: Brook and Brook and Anor [2016] FamCA 322
Case: [2016] FamCA 322
Decision Date: 6 May 2016

CaseChat Overview and Summary

The proceeding involved an application by RR Pty Ltd for costs incurred in complying with a subpoena issued by the husband. The application was heard by Macmillan J.

The sole legal issue before the court was whether RR Pty Ltd was entitled to recover the costs it incurred in responding to the subpoena.

Macmillan J dismissed the application for costs. The reasons for this decision are not detailed in the provided extract, but the outcome indicates that the court found no basis for ordering the husband to pay RR Pty Ltd's compliance costs.

The court ordered that the oral application made on behalf of RR Pty Ltd seeking conduct costs of complying with the subpoena issued by the husband on 21 October 2015 be dismissed.

Orders

Orders of the court

IT IS ORDERED THAT:

The oral application made on behalf of the RR Pty Ltd seeking conduct costs of complying with the subpoena issued by the husband on 21 October 2015 be dismissed.

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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