Demetriou and Demetriou - [2018] FamCA 310

FAMILY COURT OF AUSTRALIA

DEMETRIOU & DEMETRIOU

[2018] FamCA 310

FAMILY LAW – PRACTICE AND PROCEDURE – Application for injunction to restrain lawyers from acting – Where it is contended that the wife’s lawyers failed to comply with r 31 of the Family Law Rules 2004 (Cth) – Consideration of case law and the interests of justice – Application refused.

Evidence Act 1995 (Cth) s 75

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 31

Billington & Billington (No 2)[2008] FamCA 409
Kallinicos & anor v Hunt & ors(2005) 64 NSWLR 561
Osferatu & Osferatu (2015) FLC 93-666

APPLICANT:

Mr Demetriou

RESPONDENT:

Ms A Demetriou

FILE NUMBER:

SYC

2580

2017

DATE DELIVERED:

11 May 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

16 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Batey

SOLICITOR FOR THE APPLICANT:

Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Gillies SC

SOLICITOR FOR THE RESPONDENT:

Rowlandson & Co Solicitors

Orders

The Application in a Case filed by the husband on 12 March 2018 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Demetriou & Demetriou has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC2580 of 2017

Mr Demetriou

Applicant

And

Ms A Demetriou

Respondent

REASONS FOR JUDGMENT

There are current proceedings between Mr Demetriou (“the husband”) and Ms A Demetriou (“the wife”) in relation to parenting and property settlement. On 6 March 2018 the wife’s solicitors, Rowlandson & Co, received documents provided directly from the husband. The husband contends that these documents were sent accidentally and that his solicitors, Mills Oakley, were the intended recipient. On 12 March 2018 the husband filed an Application in a Case seeking that the wife’s solicitors be restrained from acting for her in these proceedings because they have had access to confidential information. He also seeks orders restraining the dissemination of information or documents inadvertently provided by the husband and the return of any such documents. He further seeks that a dollar for dollar costs order previously made on 14 December 2017 be suspended pending the determination of this Application.
The wife opposes the orders sought.

Application to restrain the wife from continuing to instruct her current lawyers

It is the husband’s evidence that on 2 March 2018 he instructed his cleaner, Ms G, who also assists him with administrative matters, to make a photocopy of documents he had collated for the purpose of those documents being provided…

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.

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Details

Case: [2018] FamCA 310
Decision Date: 11 May 2018

CaseChat Overview and Summary

In the matter of *Demetriou and Demetriou*, heard by Loughnan J, the husband sought to appeal an order made by a Registrar. The dispute concerned the husband's application to set aside a subpoena issued in interlocutory proceedings.

The central legal issue before the Court was whether the Registrar had erred in refusing to set aside the subpoena. This required the Court to consider the principles governing the issuance and setting aside of subpoenas in interlocutory proceedings, particularly in the context of family law matters.

Loughnan J dismissed the husband's application, finding no error in the Registrar's decision. The Court applied the established principles for assessing applications to set aside subpoenas, which generally require a high threshold to be met. The husband failed to demonstrate that the subpoena was oppressive, an abuse of process, or otherwise improperly issued.

The husband's Application in a Case filed on 12 March 2018 was therefore dismissed.

Orders

Orders of the court

The Application in a Case filed by the husband on 12 March 2018 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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