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DUPONT & UNWIN

DUPONT & UNWIN

Case [2014] FamCA 1003 26 August 2014

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FAMILY COURT OF AUSTRALIA

DUPONT & UNWIN

[2014] FamCA 1003

FAMILY LAW – EVIDENCE – subpoena duces tecum – legitimate forensic purpose – public interest immunity – interests of justice require that documents not be produced – subpoena set aside – otherwise subpoena not oppressive – otherwise subpoena not an abuse of process

APPLICANT:

Ms Unwin

RESPONDENT:

Ms Dupont

INDEPENDENT CHILDREN’S LAWYER:

Ms C Smith

FILE NUMBER:

MLC

9645

2011

DATE DELIVERED:

26 August 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

26 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Dr Ingleby

SOLICITOR FOR THE APPLICANT:

Nicola Hoobin

COUNSEL FOR THE RESPONDENT:

Ms Stoikovska

SOLICITOR FOR THE RESPONDENT:

Moores Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Harris

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

COUNSEL FOR THE CHIEF COMMISSIONER OF POLICE (PARTY UNDER SUBPOENA):

Mr Lethlean

SOLICITOR FOR THE CHIEF COMMISSIONER OF POLICE (PARTY UNDER SUBPOENA):

Victorian Government Solicitor’s Office

Orders

1.The subpoena issued at the behest of the respondent on 22 July 2014 to Inspector B, Inspector Workplace Standards, Care of the Officer in Charge, Victoria Police Fingerprint Facility Subpoena Management Unit, Victoria Police be set aside.
2.I permit the Chief Commissioner of Victoria Police to make an oral application to inspect the Court file now and in the future to take a copy of any affidavit or proof of evidence sworn, affirmed or provided by a current or former police officer other than the parties and Superintendent C.
3.I adjourn the said application to 8 September 2014 at 9.00 am (“the adjourned date”) for the purpose of according any deponent of an affidavit or witness in a proof of evidence described in paragraph 2 of this Order to be heard in opposition to the said application of the Chief Commissioner of Victoria Police.
4.In the event that there is no appearance by or on behalf of the witness on the adjourned date, the document be available for inspection and photocopying.
5.In the event that a witness appears on the adjourned date, it is intended that I will hear his/her objections to the said application and submissions from any parties to the proceedings and rule upon it.
6.Any party who has filed an affidavit or proof of evidence to which paragraph 2 of this Order applies and the Independent Children’s Lawyer forthwith notify the deponent/witness of this Order and that he/she has a right to be heard on the adjourned date.
7.For the avoidance of doubt, if a document is inspected and copied by the Chief Commissioner of Victoria Police pursuant to an Order of this Court the Chief Commissioner of Victoria Police, to the extent that it may be necessary to do so, be and is hereby released from any implied undertaking not to make other use of the document in the usual and lawful conduct of his business.

IT IS DIRECTED THAT:

8.The documents produced pursuant to the subpoena referred to in paragraph 2 of this Order be…

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 DUPONT & UNWIN

Details

AGLC: DUPONT & UNWIN [2014] FamCA 1003
Case: [2014] FamCA 1003
Decision Date: 26 August 2014

CaseChat Overview and Summary

In the matter of *Dupont & Unwin*, Justice Bennett of the Supreme Court of Victoria considered an application to set aside a subpoena issued to Inspector B, an Inspector of Workplace Standards. The subpoena was issued at the behest of the respondent, and the dispute concerned the production of documents by a police officer.

The primary legal issue before the Court was whether the subpoena should be set aside. Ancillary to this, the Court was required to determine whether the Chief Commissioner of Victoria Police should be permitted to inspect and copy affidavits or proofs of evidence sworn or affirmed by current or former police officers, other than the parties and Superintendent C, and under what conditions.

Justice Bennett reasoned that the subpoena should be set aside. The Court then considered the application by the Chief Commissioner of Victoria Police for access to certain documents. The Court permitted the Chief Commissioner to make an oral application to inspect and copy affidavits or proofs of evidence provided by current or former police officers, other than the parties and Superintendent C. This application was adjourned to allow any affected deponent or witness the opportunity to be heard in opposition. The Court also addressed the release of the Chief Commissioner from any implied undertaking regarding the use of such documents, and directed that documents produced pursuant to the subpoena be retained by the Court.

Orders

Orders of the court

1. The subpoena issued at the behest of the respondent on 22 July 2014 to Inspector B, Inspector Workplace Standards, Care of the Officer in Charge, Victoria Police Fingerprint Facility Subpoena Management Unit, Victoria Police be set aside.

2. I permit the Chief Commissioner of Victoria Police to make an oral application to inspect the Court file now and in the future to take a copy of any affidavit or proof of evidence sworn, affirmed or provided by a current or former police officer other than the parties and Superintendent C.

3. I adjourn the said application to 8 September 2014 at 9.00 am (“the adjourned date”) for the purpose of according any deponent of an affidavit or witness in a proof of evidence described in paragraph 2 of this Order to be heard in opposition to the said application of the Chief Commissioner of Victoria Police.

4. In the event that there is no appearance by or on behalf of the witness on the adjourned date, the document be available for inspection and photocopying.

5. In the event that a witness appears on the adjourned date, it is intended that I will hear his/her objections to the said application and submissions from any parties to the proceedings and rule upon it.

6. Any party who has filed an affidavit or proof of evidence to which paragraph 2 of this Order applies and the Independent Children’s Lawyer forthwith notify the deponent/witness of this Order and that he/she has a right to be heard on the adjourned date.

7. For the avoidance of doubt, if a document is inspected and copied by the Chief Commissioner of Victoria Police pursuant to an Order of this Court the Chief Commissioner of Victoria Police, to the extent that it may be necessary to do so, be and is hereby released from any implied undertaking not to make other use of the document in the usual and lawful conduct of his business.

IT IS DIRECTED THAT:

8. The documents produced pursuant to the subpoena referred to in paragraph 2 of this Order be retained by the Court until further order or 30 days following the delivery of final orders and reasons for decision.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

DUPONT & UNWIN [2014] FamCA 1003

Most Recent Citation

Dupont & Chief Commissioner of Police and Anor [2015] FamCAFC 64

Cases citing this decision · 2 of 2 shown

Brookfield v State of Queensland
[2023] QSC 125 Para 30

…ith the reasoning of Farr SC DCJ in Commissioner of Police v Coker [2019] QDCPR 3 and Bennett J of the Family Court of Australia in Du Pont and Unwin [2014] FamCA 1003. In the former decision, Judge Farr SC was concerned with the same regime relevant to this application. In the latter of those two decisions, Bennett…
Dupont & Chief Commissioner of Police and Anor
[2015] FamCAFC 64

…[2014] FamCA 1003…

View all 2 citing cases →

Cases cited in this decision · 9 of 9 shown

Dupont and Unwin
[2013] FamCA 1068 Para 8

…on the first day of hearing before me being 29 October 2013 and was referred to in my reasons for decision, the case neutral citation for which is [2013] FamCA 1068 . Relevantly, paragraphs 4 to 6 inclusive of the reasons read as follows:- 4. During submissions, I was informed that there is an internal Victoria Pol…
Attorney General (NSW) v Lipton
[2012] NSWCCA 156 Para 3

…ve potential value as to the issue between the parties and not just some “hypothetical” issue ( Attorney General (NSW) v Lipton [2012] NSWCCA 156) because: (a)The material is relevant to the issues in dispute, including issues around the child’s safety and well-being; (b)The material (particularly [B’s] report) is r…
Liristis v Gadelrabb
[2009] NSWSC 441 Para 3

…nappropriate to permit a subpoena which “does little more than trawl for documents” which may be used for that purpose. In Liristis v Gadelrabb [2009] NSWSC 441, Brereton J accepted that “trawling” in this context was the same as “fishing”, but made it clear (at [5]) that it is not “fishing” to seek such documents…
Ragg v Magistrates' Court of Victoria
[2008] VSC 1 Para 7

…In Ragg v Magistrates Court of Victoria [2008] VSC 1 Bell J discussed the authorities in the context of challenge that an accused person who was seeking documents from the prosecution in a criminal trial had failed to demonstrate that the documents were sought for a legitimate forensic purpose. The discussion w…
Fried v National Australia Bank
[2001] FCA 1280 Para 3

…In Fried v National Australia Bank Ltd (2000) 175 ALR 194 (FCA), Weinberg J accepted that it may be legitimate to issue a subpoena directed to a third party in order to obtain documents for the purpose of impeaching the credit of a witness but he cast doubt as to whether such a subpoena should be issued solely for th…
Fried v National Australia Bank Ltd
[2000] FCA 910 Para 3

…In Fried v National Australia Bank Ltd (2000) 175 ALR 194 (FCA), Weinberg J accepted that it may be legitimate to issue a subpoena directed to a third party in order to obtain documents for the purpose of impeaching the credit of a witness but he cast doubt as to whether such a subpoena should be issued solely for that purpose (at [25]–[28]…
R v Saleam
[1999] NSWCCA 342 Para 6

…In R v Saleam (1989) 16 NSWLR 14 (CCA), emphasis was placed on the need for the identification of a legitimate forensic purpose for which the subpoena was issued — that it is “on the cards” that it should be demonstrated that the documents sought would materially assist the party issuing the subpoena, see Sankey v W…
Alister v the Queen
[1984] HCA 85 Para 1

…equired unless it can be demonstrated to the court that inspection of the documents serves a legitimate forensic purpose in the case, see Alister v R (1984) 154 CLR 404.…
Sankey v Whitlam
[1978] HCA 43 Para 6

…he cards” that it should be demonstrated that the documents sought would materially assist the party issuing the subpoena, see Sankey v Whitlam (1978) 142 CLR 1 at 414.…

Legislation cited in this decision · 4

Evidence Act 2008 (Vic)
1 mention (from Para 3)
Family Law Act 1975 (Cth)
1 mention
Family Law Rules 2004 (Cth)
1 mention (from Para 1)
Police Regulation Act 1958 (Vic)
1 mention (from Para 2)