Deffia and Zuddro and Ors - [2008] FamCA 643

FAMILY COURT OF AUSTRALIA

DEFFIA & ZUDDRO AND ORS

[2008] FamCA 643

FAMILY LAW – SUBPOENAE – non-party objection – costs.

Family Law Act 1975 (Cth)

A and A (2006) FamCA 102
Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98.
Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225
Fuelexpress Limited v Erickson Pty Ltd (1987) 75 ALR 284
Greedy v Greedy (1982) FLC 91-250
Hatton v Attorney-General of Commonwealth of Australia and Ors (2000) FLC 93-038
Killorgan Investments Pty Ltd v Baycorp Advantage Business Information Services Ltd and Ors [2002] VSC 270
Relationships Australia v Pasternak and Children’s Representative (1996) FLC 92-699
Yunghanns & Ors & Yunghanns & Ors & Yunghanns (2000) FLC 93-029

APPLICANT:

Ms Deffia

RESPONDENT:

Mr Zuddrio

PERSONS WITH AN INTEREST

IN THE PROCEEDINGS:

Mr and Mrs Zuddrio (Snr) and Ms Zuddrio

FILE NUMBER:

MLC

12376

2007

DATE DELIVERED:

26 May 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

23 MAY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR CANTWELL

SOLICITOR FOR THE APPLICANT:

HOGG & REID

COUNSEL FOR THE RESPONDENT:

MR TEASDALE

SOLICITOR FOR THE RESPONDENT:

KENNA TEASDALE

COUNSEL FOR THE PERSONS WITH AN INTEREST IN THE PROCEEDINGS:

MS STEWART

SOLICITOR FOR THE INTERVENOR:

Orders

That the wife pay to the parents and sister of the husband, Mr and Mrs Zuddro (Snr) and Ms Zuddro a total sum of $5000 by way of costs.
That there be a stay of payment in respect of the said costs until 31 December 2008.
That the wife have liberty to apply on or around 31 December 2008 for an extension of time for payment of the said costs if she is so advised.
That the subpoenae filed by the wife on 14 May 2008 against National Australia Bank, W Pty Ltd, C Pty Ltd, T Pty Ltd, E Pty Ltd and R Pty Ltd be all set aside.
That any documents produced by any of the recipients of the subpoenae referred to be returned to the persons producing those documents.
That the application in a case filed on 24 April 2008 by the husband’s parents and sister and the response by the wife filed 23 May 2008 be otherwise dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was appropriate in the circumstances to brief counsel for the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 12376 of 2007

MS DEFFIA

Applicant

And

MR ZUDDRO

Respondent

And

MR and MRS ZUDDRIO (SNR) and MS ZUDDRIO
Interveners

REASONS FOR JUDGMENT

There are two interim issues for determination in this case. They are:
(a)should the wife be entitled to inspect documents produced under subpoenae to a number of companies which are controlled by her parents-in-law and sister-in-law and to inspect…

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 Deffia and Zuddro and Ors

Details

AGLC: Deffia and Zuddro and Ors [2008] FamCA 643
Case: [2008] FamCA 643
Decision Date: 26 May 2008

CaseChat Overview and Summary

In the matter of *Deffia and Zuddro and Ors*, heard before Justice Cronin, the dispute concerned applications and responses relating to subpoenas issued by the wife. The husband's parents and sister (the Zuddros) had filed an application on 24 April 2008, to which the wife responded on 23 May 2008. The wife had also issued subpoenas on 14 May 2008 to several entities, including National Australia Bank, W Pty Ltd, C Pty Ltd, T Pty Ltd, E Pty Ltd, and R Pty Ltd.

The primary legal issues before the court were the validity and appropriateness of the subpoenas issued by the wife, and the disposition of the applications and responses filed by the parties. The court was required to determine whether the subpoenas should be set aside and to rule on the applications and responses filed by the Zuddros and the wife.

Justice Cronin reasoned that the subpoenas issued by the wife were inappropriate and ordered them to be set aside. The court also dismissed the application filed by the husband's parents and sister, as well as the wife's response thereto. In relation to costs, the court ordered the wife to pay a total sum of $5000 to the Zuddros, with a stay of payment until 31 December 2008, and liberty to apply for an extension of time. The court further ordered that any documents produced pursuant to the set-aside subpoenas be returned to their original producers. Finally, the court certified that it was appropriate to brief counsel for the parties.

Orders

Orders of the court

That the wife pay to the parents and sister of the husband, Mr and Mrs Zuddro (Snr) and Ms Zuddro a total sum of $5000 by way of costs.

That there be a stay of payment in respect of the said costs until 31 December 2008.

That the wife have liberty to apply on or around 31 December 2008 for an extension of time for payment of the said costs if she is so advised.

That the subpoenae filed by the wife on 14 May 2008 against National Australia Bank, W Pty Ltd, C Pty Ltd, T Pty Ltd, E Pty Ltd and R Pty Ltd be all set aside.

That any documents produced by any of the recipients of the subpoenae referred to be returned to the persons producing those documents.

That the application in a case filed on 24 April 2008 by the husband’s parents and sister and the response by the wife filed 23 May 2008 be otherwise dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was appropriate in the circumstances to brief counsel for the parties.

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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