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Comis & Bouras (No 2)

Comis & Bouras (No 2)

Case [2020] FCCA 2667 24 September 2020

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FEDERAL CIRCUIT COURT OF AUSTRALIA
Comis & Bouras (No 2) [2020] FCCA 2667

File number(s): MLC 5577 of 2010

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 24 September 2020

Catchwords: FAMILY LAW - Practice and Procedure - subpoena objection - apparent relevance - discovery.

Legislation:
Family Law Act 1975 (Cth), ss.66L and 66K

Federal Circuit Court Rules 2001 (Cth) r.24.04

Cases cited:
Hall & Hall and Ors [2016] FamCA 143

Hall & Hall and Anor (objection to subpoena) [2014] FamCA 407

Hatton v The Attorney-General (Cth) (2000) FLC ¶93-03

National Employers’ Mutual General Insurance Association Ltd v Waind [1978] 1 NSWLR 372

Sadek and Ors & Hall & Anor (2015) ¶FLC 93-634

Number of paragraphs: 35

Date of last submission/s: 21 September 2020

Date of hearing: 21 September 2020

Place: Melbourne

The Applicant appeared In Person

Solicitor for the Respondent: Ms Sarantis of A Agrotis & Associates
ORDERS

MLC 5577 of 2010

BETWEEN:
MS COMIS

Applicant

AND:
MR BOURAS

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

24 SEPTEMBER 2020

THE COURT ORDERS THAT:
1.The Applicant's Notice of Objection filed 26 June 2020 to the subpoena to the Commonwealth Bank of Australia (CBA) be dismissed.
2.The documents produced on subpoena by the CBA be released (electronically) to the parties and their legal representatives, including for photocopying.
3.By 12 October 2020, the Applicant provide to the Respondent's solicitor a copy of the following:
(a)The documents necessary for her to comply with her duty of disclosure of her financial circumstances;
(b)Any rental agreement or document concerning the rental of the property at B Street, Suburb C, Victoria;
(c)Bank statements for any bank accounts/credit cards/mortgage/loan accounts held in her name either solely or jointly with another person for the previous 3 years from this day, but except any bank statements produced on subpoena by CBA;
(d)Any receipts of Mr D’s health care paid by the Applicant including but not limited to psychiatric consultations, doctors’ appointments and medication as are in the Applicant's control, power or possession; and
(e)Any document requested and particularised in writing by the other party (subject to relevance and any objection or claim or privilege which shall be particularised in writing) within 28 days of the request and at the cost of the party requesting the documents.

4.By 12 October 2020, the Respondent provide to the Applicant a copy of the following:
(a)The documents necessary for him to comply with his duty of disclosure of his financial circumstances;
(b)Bank statements for any bank accounts/credit cards/mortgage/loan accounts held in her name either solely or jointly with another person for the previous 3 years from this day; and
(c)Any document requested and particularised in writing by the other party (subject to relevance and any objection or claim or privilege which shall be particularised in writing) within 28 days of the request and at the cost of the party requesting the documents.

IT IS NOTED that publication of this judgment under the pseudonym Comis & Bouras (No 2) is approved pursuant to…

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 Comis & Bouras (No 2)

Details

AGLC: Comis and Bouras (No 2) [2020] FCCA 2667
Case: [2020] FCCA 2667
Decision Date: 24 September 2020

CaseChat Overview and Summary

In the matter of *Comis & Bouras (No 2)*, heard by Judge O'Shannessy, the dispute concerned objections raised by the Applicant to a subpoena issued to the Commonwealth Bank of Australia (CBA). The Applicant sought to object to the production of documents by the CBA, raising issues of relevance and discovery.

The court was required to determine whether the Applicant's objections to the subpoena were valid and whether the documents sought were relevant to the proceedings. The court also considered the broader obligations of the parties regarding financial disclosure.

Judge O'Shannessy dismissed the Applicant's Notice of Objection to the subpoena issued to the CBA, finding that the documents sought were apparently relevant. The court reasoned that the purpose of discovery and subpoenas in family law proceedings is to ensure full and frank disclosure of financial circumstances. Consequently, the documents produced by the CBA were ordered to be released to the parties. The court further made detailed orders for the ongoing disclosure of financial documents by both the Applicant and the Respondent, specifying the types of documents to be provided and the timeframe for compliance.

Orders

Orders of the court

1. The Applicant's Notice of Objection filed 26 June 2020 to the subpoena to the Commonwealth Bank of Australia (CBA) be dismissed.

2. The documents produced on subpoena by the CBA be released (electronically) to the parties and their legal representatives, including for photocopying.

3. By 12 October 2020, the Applicant provide to the Respondent's solicitor a copy of the following:

(a) The documents necessary for her to comply with her duty of disclosure of her financial circumstances;

(b) Any rental agreement or document concerning the rental of the property at B Street, Suburb C, Victoria;

(c) Bank statements for any bank accounts/credit cards/mortgage/loan accounts held in her name either solely or jointly with another person for the previous 3 years from this day, but except any bank statements produced on subpoena by CBA;

(d) Any receipts of Mr D’s health care paid by the Applicant including but not limited to psychiatric consultations, doctors’ appointments and medication as are in the Applicant's control, power or possession; and

(e) Any document requested and particularised in writing by the other party (subject to relevance and any objection or claim or privilege which shall be particularised in writing) within 28 days of the request and at the cost of the party requesting the documents.

4. By 12 October 2020, the Respondent provide to the Applicant a copy of the following:

(a) The documents necessary for him to comply with his duty of disclosure of his financial circumstances;

(b) Bank statements for any bank accounts/credit cards/mortgage/loan accounts held in her name either solely or jointly with another person for the previous 3 years from this day; and

(c) Any document requested and particularised in writing by the other party (subject to relevance and any objection or claim or privilege which shall be particularised in writing) within 28 days of the request and at the cost of the party requesting the documents.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Comis and Bouras (No 2) [2020] FCCA 2667

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Cases cited in this decision · 13 of 13 shown

Hall & Hall & Ors
[2016] FamCA 143 Para 20

…In Hall & Hall and Ors [2016] FamCA 143 (10 March 2016) ( Hall & Hall 2016 ) Dawe J adopted and observed: [25]. In the matter of Lauritz & Lauritz and Ors [2015] FamCA 635 his Honour Justice Le Poer Trench said at paragraphs 71 and 72: 71. It is well established law that the issuing party, in this case the wife, be…
Lauritz and Lauritz & Ors
[2015] FamCA 635 Para 20

…ll & Hall and Ors [2016] FamCA 143 (10 March 2016) ( Hall & Hall 2016 ) Dawe J adopted and observed: [25]. In the matter of Lauritz & Lauritz and Ors [2015] FamCA 635 his Honour Justice Le Poer Trench said at paragraphs 71 and 72: 71. It is well established law that the issuing party, in this case the wife, bears t…
Hall & Hall and Anor (Objection to Subpoena)
[2014] FamCA 407 Para 19

…In Hall & Hall and Anor (objection to subpoena) [2014] FamCA 407 ( Hall & Hall (Objections to Subpoena ), the first instance hearing of Sadek & Hall FC Subpoena Objection Dawe J conveniently summarised a number of authorities dealing with objections to subpoena. In the subsequent Full Court appeal the principles Da…
Martin & Martin and Anor (No. 2)
[2014] FamCA 232 Para 19

…pressive” due to the large amount of documents referred to over a particularly lengthy period. 14. In the recent case of Martin & Martin and Anor [2014] FamCA 232 Cronin J referred to the question of whether the subpoenas were “fishing” and whether the document was relevant. His Honour said at paragraph 28: 28. In…
Woley & Humboldt (No 3)
[2009] FamCA 546 Para 19

…As such, I would not find the exercise to be fishing. Is it documentation that is therefore relevant? In Woley and Humboldt (No 3) [2009] FamCA 546 I said: 39. In Hudson Timber and Hardware Ltd v Chaudhary Group Pty Ltd [2002] FCA 832 the Full Court of the Federal Court examined the issue of apparent relevance and…
Papadopoulos & Papadopoulos (No. 2)
[2007] FamCA 1683 Para 19

…inciples which govern the claims for relief in the substantive proceedings. 29. … In Papadopoulos and Papadopoulos (No 2) [2007] FamCA 1683, I observed: 49. The question of what is relevant takes on significance. The objective must be to assist the parties and the court in the determination of the issues in dispute.…
Portal Software v Bodsworth
[2005] NSWSC 1115 Para 19

…ent "could possibly throw light on the issues in the main case". 42. In Portal Software International Pty Ltd v Bodsworth , [2005] NSWSC 1115, Brereton J looked at a number of authorities including of this Court and said: Thus it is plainly not the question at this (first) stage whether the documents, production of…
Andrew Garrett Wine Resorts v National Australia Bank Ltd (No. 6)
[2005] SASC 292 Para 20

…ve an apparent relevance to the issues in the matter. In the decision of Andrew Garrett Wine Resorts & Anor v National Australia Bank Limited (No. 6) [2005] SASC 292; (2005) 92 SASR 419 at paragraph 37, the Honorable Justice Gray stated that: It is not enough for the party issuing the subpoena to raise a speculati…
Hudson Timber and Hardware Ltd v Chaudhary Group Pty Ltd
[2002] FCA 832 Para 19

…ore relevant? In Woley and Humboldt (No 3) [2009] FamCA 546 I said: 39. In Hudson Timber and Hardware Ltd v Chaudhary Group Pty Ltd [2002] FCA 832 the Full Court of the Federal Court examined the issue of apparent relevance and said that the relevant principles governing the obtaining of documents on subpoena whi…
Trade Practices Commission v Arnotts Limited
[1989] FCA 883 Para 19

…nnection to justify their production or inspection”. 41. In Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 248; (1989) 21 FCR 306, Beaumont J saw relevance as something where a document "could possibly throw light on the issues in the main case". 42. In Portal Software International Pty Ltd v Bodsworth ,…
Trade Practices Commission v Arnotts Ltd (No 2)
[1989] FCA 248 Para 19

…ient apparent connection to justify their production or inspection”. 41. In Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 248; (1989) 21 FCR 306, Beaumont J saw relevance as something where a document "could possibly throw light on the issues in the main case". 42. In Portal Software International Pt…
Alister v the Queen
[1984] HCA 85 Para 19

…onour said at paragraph 28: 28. In my view, the objection on the grounds of both fishing and relevance fails. As Gibbs CJ said in Alister v R [1984] HCA 85; (1984) 154 CLR 404 albeit in a criminal law case, the focus of the Court should be whether it was “on the cards” that the documents would materially assist.…
Epstein & Epstein
[1993] FAMCA 45 Para 19

…bjections to subpoena. In the subsequent Full Court appeal the principles Dawe J set out were unquestioned. Her Honour said: 13. In Epstein & Epstein [1993] FamCA 45; (1993) FLC 92-384 the subpoenas were set aside because they were described as “oppressive” due to the large amount of documents referred to over a p…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
66K, 66L 3 mentions (from Para 2)
Federal Circuit Court Rules 2001 (Cth)
24.04 1 mention

File number(s):	MLC 5577 of 2010
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	24 September 2020
Catchwords:	FAMILY LAW - Practice and Procedure - subpoena objection - apparent relevance - discovery.
Legislation:	Family Law Act 1975 (Cth), ss.66L and 66K Federal Circuit Court Rules 2001 (Cth) r.24.04
Cases cited:	Hall & Hall and Ors [2016] FamCA 143 Hall & Hall and Anor (objection to subpoena) [2014] FamCA 407 Hatton v The Attorney-General (Cth) (2000) FLC ¶93-03 National Employers’ Mutual General Insurance Association Ltd v Waind [1978] 1 NSWLR 372 Sadek and Ors & Hall & Anor (2015) ¶FLC 93-634
Number of paragraphs:	35
Date of last submission/s:	21 September 2020
Date of hearing:	21 September 2020
Place:	Melbourne
The Applicant appeared In Person
Solicitor for the Respondent:	Ms Sarantis of A Agrotis & Associates

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	24 SEPTEMBER 2020