Cahill and Cahill and Anor

FAMILY COURT OF AUSTRALIA

CAHILL & CAHILL AND ANOR [2013] FamCA 176

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenae set aside

Family Law Act 1975 (Cth)

Brand v Digi-Tech [2001] NSWSC 425
Commissioner for Railways v Small (1938) 38 SR(NSW) 564
Hatton v Commonwealth Attorney-General & Ors (2000) 26 Fam LR 570
Mandic v Phillis [2005] FCA 1279
Pasini v Vanstone [1999] FCA 1271
National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372
Ocean Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 62 ALJR 389
Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90

APPLICANT: Ms Cahill

RESPONDENT: Mr Cahill

INTERVENOR: Mr Canuzzio

FILE NUMBER: MLC 10670 of 2010

DATE DELIVERED: 26 March 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 8 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Strum

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT: Mr Brown SC

SOLICITOR FOR THE RESPONDENT: Lander & Rogers

COUNSEL FOR THE INTERVENOR: Dr Ingleby

SOLICITOR FOR THE INTERVENOR: Howe Martin & Associates

Orders

1. That the subpoenae issued to Mr Canuzzio and Ms Canuzzio on 3 October 2012 are set aside.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cahill & Cahill 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 10670  of 2010

Ms Cahill

Applicant

And

Mr Cahill

Respondent

And

Mr Canuzzio
Other Party

REASONS FOR JUDGMENT

1. Having been served with subpoenae issued by the Court at the request of the solicitors for the husband, Mr Canuzzio and his mother seek to have them set aside on the grounds that they are oppressive, fishing and an abuse of process.

2. Chapter 15 of the Family Law Rules 2004 sets out that objectors are required to attend court and they have done so submitting that the subpoenae should be set aside. I heard submissions from counsel respectively for the recipients of the subpoenae, the husband and the wife and reserved my judgment to consider the material in some detail.

3. In my view, these subpoenae were an abuse of process and must be set aside despite one lot of documents being offered by the subpoenaed parties which they have agreed to produce. What follows are my reasons.

4. Mr Canuzzio and his mother are the brother and mother respectively of the wife in complicated financial proceedings in this Court.

5. The subpoenae were issued by the Court at the request of the husband on 3 October 2012 and although there have been other issues litigated over the ensuing weeks thereafter between the various parties, this issue remained outstanding.

6. Mr Canuzzio and his mother are not parties to the substantive proceedings and their connection to the parties (if any) lies in their control of a variety of corporate entities.

7. The relevant subpoenae began in an introductory way by identifying the…