Daniels and Findlay (No. 2) - [2012] FamCA 422

FAMILY COURT OF AUSTRALIA

DANIELS & FINDLAY (NO. 2)

[2012] FamCA 422

FAMILY LAW – PRACTICE AND PROCEDURE – Objections to subpoenas dismissed

APPLICANT:

Mr Daniels

RESPONDENT:

Ms Findlay

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

1996

2008

DATE DELIVERED:

25 May 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Dessau J

HEARING DATE:

25 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Combes

SOLICITOR FOR THE APPLICANT:

Holt & McDonald

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

Orders

That the objections of Ms H to the husband’s two subpoenas to the Westpac Bank filed 4 May 2012, being the objections filed on 22 May 2012, shall be and are hereby dismissed.
That the documents produced to the Court by Westpac Bank in response to the said subpoenas can be released for inspection by the parties.
That the husband’s Amended Application in a Case filed 2 May 2012 shall be adjourned for Mention before me at 10.00am on 18 July 2012.
That all questions of the husband’s costs of the Amended Application in a Case and the subpoena issue shall be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Daniels & Findlay (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 1996 of 2008

Mr Daniels

Applicant

And

Ms Findlay

Respondent

REASONS FOR JUDGMENT

One issue remained in this long-running case after I gave reasons for judgment on 11 May 2012 in relation to Mr Daniel’s (“the husband’s”) amended application in a case filed 2 May 2012, an application that was fully directed towards his ongoing endeavours to achieve implementation of the final property orders made by me a long time ago now.
The remaining issue is whether materials subpoenaed from Westpac Bank should be released and inspected by the husband and his legal representatives.
The husband’s lawyer filed two subpoenas on 4 May 2012, both directed to Westpac bank.
The first sought:
All bank statements in the name of [A-P Pty Ltd] from 28 March 2012 to date, including, but not limited to, account number […55].
The second subpoena directed to Westpac sought:
All correspondence, emails, notes of telephone discussions or communications relating to account number […55] in the name of [A-P Pty Ltd] from either the directors or secretary of that company.
Both subpoenas were returnable on 11 May 2012. Westpac produced the documents pursuant to both subpoenas and, notably, made no objection to their production or inspection.

The objection, such as it is, comes from Ms H, a director of A-P Pty Ltd. She gives three grounds of objection in relation to both subpoenas in Notices of Objection filed on 22 May 2012. The three grounds are as follows:
1.I am a director of [A-P Pty Ltd] and, to my knowledge, the company is not enjoined in the proceedings.
2.Documents re the subpoena were…

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 Daniels and Findlay (No. 2)

Details

AGLC: Daniels and Findlay (No. 2) [2012] FamCA 422
Case: [2012] FamCA 422
Decision Date: 25 May 2012

CaseChat Overview and Summary

In *Daniels and Findlay (No. 2)*, Dessau J of the Supreme Court of Victoria considered objections raised by Ms H to two subpoenas issued by the husband to Westpac Bank. The dispute concerned the production of documents by the bank, which Ms H sought to prevent.

The primary legal issue before the court was whether Ms H's objections to the husband's subpoenas to Westpac Bank should be upheld. This involved determining the extent to which Ms H had standing to object to the production of documents held by a third party, and whether the documents sought were relevant to the proceedings.

Dessau J dismissed Ms H's objections, finding that she did not have sufficient standing to object to the subpoenas issued to Westpac Bank. The court reasoned that the documents sought were relevant to the husband's application and that the bank was the proper party to raise any objections regarding privilege or confidentiality. Consequently, the court ordered that the documents produced by Westpac Bank in response to the subpoenas could be released for inspection by the parties. The husband's Amended Application in a Case was adjourned for mention, and all questions of costs were reserved.

Orders

Orders of the court

That the objections of Ms H to the husband’s two subpoenas to the Westpac Bank filed 4 May 2012, being the objections filed on 22 May 2012, shall be and are hereby dismissed.

That the documents produced to the Court by Westpac Bank in response to the said subpoenas can be released for inspection by the parties.

That the husband’s Amended Application in a Case filed 2 May 2012 shall be adjourned for Mention before me at 10.00am on 18 July 2012.

That all questions of the husband’s costs of the Amended Application in a Case and the subpoena issue shall be reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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