Duan & Ren (No 3)
[2024] FedCFamC1F 454
•4 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Duan & Ren (No 3) [2024] FedCFamC1F 454
File number(s): SYC 2533 of 2024 Judgment of: BRASCH J Date of judgment: 4 July 2024 Catchwords: FAMILY LAW – PROCEDURAL – Where four subpoenae to produce documents were filed by the applicant – Where both the first and second respondents filed objections – Where both respondents filed objections out of time – Where r 6.38 of the Rules is in mandatory terms – Where both respondents failed to provide adequate justification for dispensing with the rules – objections struck out. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.38 Division: Division 1 First Instance Number of paragraphs: 11 Date of hearing: 4 July 2024 Place: Sydney Counsel for the Applicant: Mr Ahmad Solicitor for the Applicant: Alton Legal Solicitor for the First Respondent: Korn Tlais Defence Lawyers Counsel for the Second Respondent: Mr Saleh Solicitor for the Second Respondent: JC Legal Practice ORDERS
SYC 2533 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DUAN
Applicant
AND: MR REN
First Respondent
MS MANDEL
Second Respondent
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
4 JULY 2024
THE COURT ORDERS THAT:
Subpoena
1.The Notices of Objection filed by the first respondent on 17 June 2024 are struck out.
2.The Notices of Objection filed by the second respondent on 3 June 2024 are struck out.
3.The applicant wife has leave to amend the subpoena directed to H Pty Ltd filed on 15 May 2024 to the effect that 2(a) and 2(b)(ii) are struck out, and 2(b)(i) pertains to all annual tax returns and financial statement of the first respondent only.
4.The applicant wife has leave to amend the subpoena directed to Westpac Banking Corporation filed 15 May 2024 to the effect that 2(b) is struck out and 2(a) pertains to all correspondence between the first and/or second respondent with Westpac concerning directions to make payments/send money offshore.
5.All parties have leave to issue more than 5 subpoena each.
6.All parties have leave to inspect the documents produced by National Australia Bank under subpoena filed 15 May 2024 and the Department of Home Affairs under subpoena filed 15 May 2024.
Points of Claim
7.By no later than 4.00 pm on 30 August 2024, the applicant wife is to file and serve a document entitled Points of Claim in relation to the relief sought by her contained within her Amended Initiating Application filed 9 May 2024 at paragraphs 1, 2, 3 and 4, particularising with specificity:
(a)The causes of action at law and in equity which she claims to prosecute as against the first and second respondents (or either of them);
(b)The facts and circumstances she asserts, and upon which she relies, that give rise to the causes of action referred to above; and
(c)The case law or legislation upon which she relies in support of her claims.
8.By no later than 4.00 pm on 13 September 2024, the first and second respondents be entitled to request further and better particulars from the applicant wife and she is to provide a Response by no later than 4.00 pm on 27 September 2024.
9.By no later than 4.00 pm on 11 October 2024, the first and second respondents are to file and serve a document entitled “Response to Points of Claim” in which the relevant party particularises with specificity:
(a)The response, if any, to the cause of action claimed;
(b)The facts and circumstances asserted to which the party agrees, disagrees or does not admit; and
(c)The case law or legislation upon which the party relies to prosecute their claim.
Procedural
10.The directions hearing listed in this matter on 22 August 2024 is vacated.
11.The matter is listed for a directions hearing before the docket Registrar on a date to be fixed, but not before the middle of October 2024.
THE COURT NOTES THAT:
A.Reasons will be published in relation to orders 1 and 2. Separate reasons were given for other contested issues during the course of the hearing.
B.All parties and legal representatives are reminded of sections 67 and 68 of the Federal Circuit and Family Court of Australia Act 2021.
C.The parties are intending to convene a mediation prior to the next court event.
D.The matter will be referred to the coordinating Registrar to be allocated a docket Registrar and the parties will be notified of the date of the next court event.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J:
These are my ex tempore reasons in relation to Notices of Objection to Subpoena, which I will correct for any grammatical errors and to make the spoken word more amendable to writing.
At the behest of the applicant wife (“the wife”), on 15 May 2024 subpoenae to produce documents were filed (and sealed on 16 May 2024) directed to two banks (National Australia Bank Ltd and Westpac Banking Corporations), an entity called H Pty Ltd, and the Department of Home Affairs.
It is plain on the face of the four subpoenas that they were to be served by 20 May 2024. I was helpfully advised that they were served on 17 May 2024.
Again, as is very plain from the four subpoenae, the documents were to be produced by 30 May 2024 before 4.30 pm.
This brings in to play rule 6.38 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’), which all legal representatives agree is in mandatory terms. Rule 6.38(1) says the following:
(1) A person who objects to producing a document subpoenaed, or another party or an interested person who objects to the inspection or copying of a document subpoenaed by a party to the proceedings, must, before the day stated in the subpoena for production, give written notice of the objection and the grounds of the objection to:
(a) the Registry Manager; and
(b)if the objector is not the person subpoenaed—the person subpoenaed; and
(c) each party, or other party, to the proceeding; and
(d) each independent children’s lawyer, or each other independent children’s lawyer, in the proceeding.
That means the [Notices of] objections must have been filed by 29 May 2024.
The legislature has chosen to use a mandatory term - ‘must’ as is obvious from that [provision]. Contrary to the mandatory time for filing, Notices of Objection - Subpoena were filed by:
(a)the first respondent husband (“the husband”) on 17 June 2024; and
(b)a person said to be either a business associate of the husband, or perhaps a paramour (that will be determined at a later date) the second respondent (“the 2nd respondent”) on 3 June 2024.
True, I have a discretion to dispense with the rules, but the legislature’s intent is very clear – “must”. Neither the legal representative for the husband or the second respondent have persuaded me I should dispense with the rules.
The husband essentially fell on his sword, and appropriately so given how late his material is, saying that he accepted they were late. I acknowledge and commend the husband’s legal representative for being frank and candid with the Court. He accepted they were late and left the matter, really, in my hands.
The second respondent said that the relevant documents went to the solicitor’s junk email. That strikes me akin to what can sometimes be said, ‘the dog ate my homework’. I do not consider what must be plainly poor email practice by the second respondent’s [lawyer] to be a reason why I would dispense with the very clear terms of the rules. We are in a day and age of electronic communications, wherein it is imperative solicitors have email settings that do not see something like this [happening].
Accordingly, I strike out the four Notices of Objection- Subpoena filed by the first respondent husband on 17 June 2024 and those of the second respondent filed 3 June 2024.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 4 July 2024
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