Cook & Cook

[2009] FamCA 701

FAMILY COURT OF AUSTRALIA

COOK & COOK AND ORS [2009] FamCA 701

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – Disclosure of documents – Interlocutory ruling during defended hearing

Family Law Act 1975 (Cth)

APPLICANT: MS COOK

RESPONDENT: MR COOK

FILE NUMBER: MLF 1997 of 2003

DATE DELIVERED: 6 JULY 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 6 JULY2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR ST JOHN WITH HIM MS STEWART

SOLICITOR FOR THE APPLICANT: MARSHALLS & DENT

COUNSEL FOR THE RESPONDENT: MR SPICER

SOLICITOR FOR THE RESPONDENT: KENNEDY WISEWOULDS

IT IS NOTED that publication of this ruling under the pseudonym Cook & Cook is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1997 of 2003

MS COOK

Applicant

And

MR COOK

Respondent

REASONS FOR JUDGMENT

1. A preliminary issue has arisen in respect of a subpoena, which the solicitors for the wife issued, directed to the managing partner, Kennedy Wisewoulds.  That subpoena was filed 17 June 2009 and served shortly thereafter.  This issue was briefly mentioned before me in an earlier case management mention on or about 29 June of this year, and was otherwise stood over until today.  Pursuant to the subpoena, the wife’s solicitors seek, in relation to joinder and discovery issues involving Cook Investments Pty Ltd and Cook Partnership, diary notes and then other accounting records. 

2. As to paragraph 1 in the diary notes therein sought, that is not pursued by Senior Counsel engaged by the wife.  As to paragraph 2, what is sought is following accounting records inclusive of trust and office account ledgers, tax invoices, receipts and other source documentation.  As I understand the various submissions, the husband has given instructions to his solicitors, and in the course of giving those instructions, has purportedly also given instructions on behalf of interested persons who were formally identified as the 11^th and 13^th respondents in the earlier hearing of this matter. 

3. The 11^th respondent is the investment company; the 13^th respondent is the partnership.  It would seem that Kennedy Wisewoulds have, both for instructions and otherwise, for accounting and trust records, treated the husband and each of those other parties as a collective, rather than individually.  It is said that there are no separate trust and office accounts and other financial records for the 11^th and 13^th respondent (as they were formally known).  That would therefore mean that there are those records for the husband which would encompass those other entities. 

4. Mr Spicer has asked for some time, until tomorrow morning, to be shown copies of those records and, on that informed basis, to make a determination of what can be provided, on a basis yet to be ascertained to the wife’s solicitors.  Mr St. John maintains his submissions that all documents under paragraph 2 of that subpoena should properly be disclosed, as they are both relevant and important to the proceedings before the court, given that issues of control, management and instructions are, at least in part, all in issue.  I carefully make no finding relevant to the matters in dispute in the substantial hearing. 

5. I record and I have indicated to counsel that I would most likely endorse the provision of all paragraph 2 documents, be it relevant to the husband or to either of the other entities.  They are matters which properly touch on substantive matters in issue.  I say that with the understanding that appropriate recognition of the role of the husband, in giving instructions, has already been conveyed to the court, on instructions, by Mr Spicer. 

6. In summary, whilst I will have these brief reasons transcribed and placed on the court file and made available to all parties, I will allow Mr Spicer the opportunity, without a timetable imposed on him, to sight these documents overnight and to advise me in the morning of any further instructions or submissions that he wishes to make in respect of the paragraph 2 documents.  Otherwise, as to the diary notes and the balance of paragraph 1, they will not be pursued and are not the subject of any order that I would make.  

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: