Faden and Faden (No 3) - [2011] FamCA 897

FAMILY COURT OF AUSTRALIA

FADEN & FADEN (NO 3)

[2011] FamCA 897

FAMILY LAW – PROCEDURAL – Subpoena to give evidence

Family Law Act 1975(Cth)
Family Law Rules 2004 (Cth)

Blann and Blann (1983) FLC 91-322
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Mallet & Mallet (1981) FLC 91-091
R v Barton[1981] 2 NSWLR 414
Re Z (1996) 20 Fam LR 651
Waind and Hill (1978) 1 NSWLR 372

APPLICANT:

Mr Faden

RESPONDENT:

Ms Faden

FILE NUMBER:

SYC

8240

2007

DATE DELIVERED:

Orders
11 November 2011
Reasons
24 November 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

By written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Blackah

SOLICITOR FOR THE APPLICANT:

Caroline Chung & Associates

COUNSEL FOR THE RESPONDENT:

Mr Schonell SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Kelly

Orders

Pending further order, neither party is to issue any subpoena unless it is approved by Justice Le Poer Trench.
Leave is granted to each party to apply to Justice Le Poer Trench in chambers to issue any subpoena from this point forward.
The matter is to be re-listed for the purpose of considering further directions in relation to the preparation of the single experts valuation of relevant entities of the parties. Such listing to be arranged by the Court at a time convenient to the Court and the parties.
The subpoena to produce and to give evidence issued to Mr Mr T and Mr Mr U 11 July 2011, to the extent that the subpoena are unanswered by production of documents are struck out.

IT IS NOTED that publication of this judgment under the pseudonym Faden & Faden 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 SYDNEY

FILE NUMBER: SYC 8240 of 2007

Mr Faden

Applicant

And

Ms Faden

Respondent

REASONS FOR JUDGMENT

Before the Court is an application by the husband to examine Mr Mr T and Mr Mr U in relation to their responses to subpoena issued against them by the Registrar on 11 July 2011. When the matter was before the Court on 30 August 2011, I ordered that the husband provide written submissions setting out the provisions of the Act and Rules and general law which would empower the Court to make the orders sought by him, together with argument to support his application for the Court to exercise such power. As will be seen from the submissions set out below there is also an application for the wife to pay the husband’s costs.
On 12 September 2011 the husband provided those submissions by email addressed to my associate. The submissions are succinct and contain relevant history and I here incorporate them into these reasons. I have amended the submissions to remove obvious mistakes and omissions:
Dear Madam Associate,
We refer to the Orders made by His Honour on 30 August 2011.
One of His Honour’s…

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: [2011] FamCA 897
Decision Date: 11 November 2011

CaseChat Overview and Summary

In *Faden and Faden (No 3)*, Le Poer Trench J of the Family Court of Australia considered an application concerning the issuance and returnability of subpoenas in ongoing proceedings. The dispute involved the wife's submissions regarding the Court's power to issue subpoenas for evidence prior to the final hearing, particularly in relation to the valuation of minority interests in various entities.

The primary legal issue before the Court was whether subpoenas to give evidence could be made returnable on a date prior to the final hearing of the proceedings, and whether the Court had the discretion to permit such early return dates as part of its case management powers. The wife argued that the Family Law Rules 2004 did not expressly prohibit subpoenas to give evidence from being listed before the final hearing, drawing parallels with rules in other jurisdictions that allowed for subpoenas to be returnable on dates permitted by the Court. She contended that this approach was consistent with the Court's broad discretion under rule 16.4 for managing trials and was particularly relevant for obtaining information necessary for valuations required before the conclusion of proceedings.

Le Poer Trench J reasoned that while subpoenas to give evidence are often listed at the final hearing, there is no absolute legal restriction preventing them from being returnable earlier, especially when such evidence is required for the preparation of the proceedings, such as for expert valuations. The Court noted that subpoenas to produce documents are commonly made returnable before the final hearing to facilitate preparation. Applying this rationale, the Court found that it had the power, under its case management discretion, to permit subpoenas to give evidence to be returnable on a date prior to the final hearing, particularly where it served the purpose of obtaining necessary information for the valuation of the parties' interests.

Consequently, the Court made several orders. It struck out the subpoenas issued to Mr. T and Mr. U to the extent that they required the production of documents, indicating that these particular aspects were not properly before the Court. Pending further order, neither party was permitted to issue any subpoena without the approval of Justice Le Poer Trench, and leave was granted to each party to apply to the Justice in chambers for leave to issue subpoenas. The matter was to be relisted for further directions concerning the preparation of the single expert's valuation of the relevant entities.

Orders

Orders of the court

Orders

1. Pending further order, neither party is to issue any subpoena unless it is approved by Justice Le Poer Trench.

2. Leave is granted to each party to apply to Justice Le Poer Trench in chambers to issue any subpoena from this point forward.

3. The matter is to be re-listed for the purpose of considering further directions in relation to the preparation of the single experts valuation of relevant entities of the parties. Such listing to be arranged by the Court at a time convenient to the Court and the parties.

4. The subpoena to produce and to give evidence issued to Mr Mr T and Mr Mr U 11 July 2011, to the extent that the subpoena are unanswered by production of documents are struck out.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The wife’s submissions in relation to the matter were received on 27 September 2011. In her submissions she recited relevant history and attached relevant documents. The submission then continues from paragraph 4 to paragraph 12 under the heading “The power of the Court to issue subpoenas to give evidence on a date prior to final hearing.” Those submissions are as follows:The power of the Court to issue subpoenas to give evidence on a date prior to the final hearing4.The Family Law Rules are silent as to when subpoenas to give evidence may be returnable. There is no legal restriction which requires subpoenas to give evidence to be listed at final hearing, albeit such subpoenas usually are so listed. The form of subpoena requires that a date time and place for attendance be stated on it, and this appears to be the limit of the requirement.5.By way of comparison rule 33.3(6) of the Uniform Civil Procedure Rules (NSW) similarly does not restrict the date on which a subpoena might be listed. Rule 24.13(6) of the Federal Court Rules 2011 is in identical terms to rule 33.3(6) UCPR. Both rules require that the date specified on the subpoena be the date of the trial or any other date permitted by the Court. 6.Noting the trial in these proceedings commenced on 25 June 2009 before His Honour, Le Poer Trench J under Part 16 of the Family Law Rules 2004 and has continued on a number of days since then, the Court has, as part of its broad discretion under rule 16.4, the power to list a subpoena to give evidence on a specified day as part of the continuation of the trial. 7.Subpoenas to produce documents are, as a matter of course, listed prior to the final hearing. The rationale is succinctly stated in Pyoja Pty Ltd v 284 Bronte Road Developments Pty Ltd [2006] NSWSC 831. The Court said at paragraph 6:" UCPR 33.3(6) provides that a subpoena may be made returnable for the date of the trial “or any other date as permitted by the Court”. It is common practice in this Court for subpoenas to be issued and made returnable before the Registrar well before the date fixed for trial, so that documents required for preparation may be procured."8.This rationale (the early listing of subpoenas so that information and documents required for preparation may be procured in advance of trial) applies equally to the present subpoenas. Documents and information are required in relation to entities in which the parties have minority interests for those interests to be valued for the proceedings. [Mr U] and [Mr T] are in a position to provide that information and those documents. They can be subpoenaed to give evidence accordingly. Since the valuation of the parties' interests is required prior to a final hearing of the proceedings, it makes sense for the evidence to be given prior to final hearing.9.As a general submission, but particularly in the context of Part 16, there seems to be no legal basis in support of the proposition that a subpoena to give evidence cannot, in appropriate cases, be returnable on a day prior to the final hearing.10.While it was open to His Honour in the alternative to require the third parties to attend to be examined upon their oath under Part 15.6 of the Rules, in His Honour's management of the trial pursuant to rule 16.04, His Honour granted leave for subpoenas to give evidence to issue instead, consistent with His Honour's approach on 18 May 2011. 11.It is submitted this case management approach was open to His Honour and the subpoenas to give evidence have properly been given a date for attendance prior to final hearing, for the reasons just set out.12.If this submission is not accepted, His Honour is requested to direct [Mr U] and [Mr T] to attend before a Registrar to be examined pursuant to rule 15.71.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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