Clifton & Aspen (No 3) - [2023] FedCFamC1F 645

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Clifton & Aspen (No 3) [2023] FedCFamC1F 645

File number(s): SYC 760 of 2021

Judgment of: ALDRIDGE J

Date of judgment: 3 August 2023

Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Where the wife seeks leave to issue a number of subpoenas to which the respondents object – Where the parties have filed written submissions as to the proposed content of them prior to their issue – Relevance – Fishing expedition – Where there is merit in limiting the subpoenas – Where the wife is otherwise granted leave to issue the subpoenas subject to those limitations – Costs reserved.

Cases cited:
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250

Clifton & Aspen [2023] FedCFamC1F 376

Clifton & Aspen (No 2) [2023] FedCFamC1F 594

Commissioner for Railways v Small (1938) 38 SR (NSW) 564

Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2020] NSWSC 620

Division: Division 1 First Instance

Number of paragraphs: 41

Date of last submissions: 25 July 2023

Date of hearing: 11 July 2023

Place: Sydney

Counsel for the Applicant: Mr Sirtes SC with Mr Auld

Solicitor for the Applicant: Delaney Lawyers

Counsel for the First Respondent: Mr Hollo

Solicitor for the First Respondent: Pearson Emerson

Counsel for the Second and Third Respondents: Mr Sulan SC with Ms Jeliba

Solicitor for the Second and Third Respondents: Barkus Doolan Winning
ORDERS

SYC 760 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS CLIFTON

Applicant

AND:
MR B ASPEN

First Respondent

D PTY LTD

Second Respondent

MR C ASPEN

Third Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

3 AUGUST 2023

THE COURT ORDERS THAT:
1.Leave is granted to the wife to issue a subpoena to Australia and New Zealand Banking Group Ltd in the form already provided to the Court.
2.Leave is granted to the wife to issue a subpoena to RR Lawyers, EE Pty Ltd, EE3 Pty Ltd, E Lawyers and F Company which conform with these reasons.
3.The costs of the application to file the subpoenas and the associated written submissions are reserved.

NOTATION:
A.These orders have been amended pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that…

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 Clifton & Aspen (No 3)

Details

AGLC: Clifton & Aspen (No 3) [2023] FedCFamC1F 645
Case: [2023] FedCFamC1F 645
Decision Date

CaseChat Overview and Summary

In Clifton & Aspen (No 3) [2023] FedCFamC1F 645, the wife sought leave to issue several subpoenas to which the respondents objected. The respondents argued that the subpoenas were too wide and sought documents not relevant to the proceedings. The court had to determine whether the subpoenas had some apparent relevance to the proceedings and whether the subpoenas were too wide. The court held that the subpoenas should be limited to the relevant dates, parties and properties identified in the Second Further Amended Points of Claim. The court also held that the subpoenas should be limited to documents that had some apparent relevance to the proceedings.

The court held that the subpoenas to RR Lawyers, EE Pty Ltd and EE3 Pty Ltd were too wide and sought documents that did not have apparent relevance to the proceedings. The subpoenas to Australia and New Zealand Banking Group Ltd and E Lawyers were granted subject to limitations. The subpoena to F Company was granted subject to limitations. The costs of the application to file the subpoenas and the associated written submissions were reserved.

Orders