Cahill and Cahill (No. 2) - [2013] FamCA 453

FAMILY COURT OF AUSTRALIA

CAHILL & CAHILL (NO. 2)

[2013] FamCA 453

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena objection – Issues of relevance and “fishing”.

Family Law Act 1975 (Cth)

Cahill and Cahill and Anor [2013] FamCA 176
Papadopoulos and Papadopoulos (No 2) [2007] FamCA 1683
Woley and Humboldt (No 3) [2009] FamCA 546

APPLICANT:

Ms Cahill

RESPONDENT:

Mr Cahill

NAMED PERSON:

Ms D Cahill

FILE NUMBER:

MLC

10670

2010

DATE DELIVERED:

18 June 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

13 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Strum

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Henderson

SOLICITOR FOR THE RESPONDENT:

Lander & Rogers

COUNSEL FOR THE NAMED PERSON:

Mr Atkinson

SOLICITOR FOR THE NAMED PERSONS:

Barnes Brinsley Shaw Lawyers

Orders

That the documents produced under the subpoena filed 6 December 2012 be released for inspection and if agreed, copying.
That the objection be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cahill & Cahill (No. 2) 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

Ms D Cahill

Named Person

REASONS FOR JUDGMENT

By a subpoena filed 6 December 2012 and issued by the Court that day, the wife in these proceedings sought from a firm of solicitors, a variety of documents. The release of those documents for inspection is now the subject of objection by the husband’s mother.
In between December 2012 and now, a number of interlocutory hearings have occurred and this is another in which there is a dispute over documents.
On 13 June 2013, the contested hearing about the objection took place. The wife was represented by counsel as was the objector. No objection was filed by or on behalf of the solicitors named in the subpoena nor by the husband although he appeared by his solicitor.
In Cahill and Cahill and Anor [2013] FamCA 176, I said:
18.It is timely to remember that a subpoena is a court order with consequent sanctions and the privacy of the recipient is being invaded even if that person is a close relative of the litigant party.
Regardless of the fact that this is litigation involving various members of families, the Court must approach the matter on the basis that it is contemplating invading the privacy of a non-party. It is therefore a serious issue.
There were other subpoenae disputes but they were largely resolved and I need not stray from the contentious issue. That is, the subpoena sought from the solicitors who acted for a group of companies, the following:
· From 1 January 2007 to present, all files in relation to any issue regarding the disposition and/or potential sale of E Group asset (s) and all records of telephone conversations,…

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.

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Details

Case: [2013] FamCA 453
Decision Date

CaseChat Overview and Summary

In *Cahill and Cahill (No. 2)*, the Family Court of Australia considered an objection raised by the husband's mother to a subpoena issued by the wife. The subpoena sought various documents from a firm of solicitors concerning the disposition or potential sale of assets of a group of companies, as well as copies of invoices rendered on matters relating to those companies and trusts. The objector contended that the subpoena was oppressive, fishing, and an abuse of process, and that the documents were subject to legal professional privilege and not relevant to the dispute between the husband and wife.

The primary legal issues before the Court were whether the objector had standing to object to the subpoena, and if so, whether the subpoena should be set aside on the grounds of legal professional privilege, irrelevance, or being oppressive and fishing. The Court was required to determine the appropriate test for relevance in Family Court proceedings and whether the wife had demonstrated a legitimate forensic purpose for seeking the documents, considering the potential invasion of a non-party's privacy.

Justice Cronin found that the objector had sufficient interest to be heard, rejecting the argument that she needed to formally prove her asserted capacities. The Court applied established principles regarding the relevance of subpoenaed documents, noting that relevance is not limited to documents directly admissible in proof of an issue, but extends to documents that could "possibly throw light" on the issues in the main case or have a "sufficient apparent connection" to justify production. The Court considered the wife's allegations regarding a purported agreement for the division of company assets and evidence suggesting communications with the G family regarding a potential sale. Despite the wife's allegations being largely untested, the Court found that there was "apparent relevance" to the issues in dispute, particularly in light of the husband's denials. The Court also considered the wife's assertion of a history of evasiveness in asset disclosure within the family, which, while untested, contributed to the conclusion that the subpoena was not merely a "fishing expedition."

The Court ordered that the documents produced under the subpoena be released for inspection and, if agreed, copying, and otherwise dismissed the objection.

Orders