Franke and Long and Ors (No 2)

[2011] FamCA 776

FAMILY COURT OF AUSTRALIA

FRANKE & LONG & ORS (NO 2) [2011] FamCA 776

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – Whether privilege attached to time costing records of the wife’s solicitors

FAMILY LAW – PRACTICE AND PROCUDURE - Subpoena - Costs of production - Order that husband pay solicitors costs for expense in answering subpoena

Family Law Act 1975 (Cth) s 117and 117(2A)

APPLICANT: Mr Franke

1st RESPONDENT: Ms Long

2nd RESPONDENT: Mr F

3rd RESPONDENT: Ms F

FILE NUMBER: CSC 703 of 2008

DATE DELIVERED: 26 September 2011

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Benjamin J

HEARING DATE: 26 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE 1ST RESPONDENT: In person

COUNSEL FOR THE 2ND RESPONDENT: Ms A Black

SOLICITOR FOR THE 2ND RESPONDENT: Miller Harris Lawyers

COUNSEL FOR THE 3RD RESPONDENT: Ms A Black

SOLICITOR FOR THE 3RD RESPONDENT: Miller Harris Lawyers

Orders

1. The husband shall file a response to the Statement of Claim within fourteen (14) days from today’s date.

2. The second and third respondents shall file their responses within a further period of fourteen (14) days after that time.

3. The wife file any reply within a period of fourteen (14) days after that time.

   IT IS DIRECTED

4. The parties shall meet, if need by by telephone, to try to define and set up a definition of the work in relation to the valuation of the property pursuant to these proceedings, that not to occur until after the finalisation of the pleadings.

   IT IS FURTHER ORDERED

5. Leave be given to the parties to have the matter listed before a Registrar for the purpose of either making a consent order with regard to valuation of the property or to determine the question of valuation if not agreed.

6. These proceedings be listed before a Registrar for directions at 9.30am on
   12 December 2011.

   IT IS REQUESTED

7. The Registrar make directions for hearing including the filing of affidavits and such other directions as are necessary to have the matter ready for hearing at the earliest available date.

   IT IS FURTHER ORDERED

8. The husband pay the costs of O’Reilly Stevens Bovey Lawyers for production of documents pursuant to subpoana and on arguing subpoena of $300.00, such amount to be paid within two (2) months from today’s date.

   IT IS FURTHER DIRECTED

9. A copy of the reasons for these orders be taken out and placed on the court file.

   IT IS CERTIFIED

10. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment under the pseudonym Franke & Long and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 703 of 2008

Mr Franke

Applicant

And

Ms Long

First respondent

And

Mr F

Second respondent

And

Ms F

Third respondent

REASONS FOR JUDGMENT

1. A subpoena was issued on 9 September 2011 by the husband in these proceedings addressed to the partners, O'Reilly Stevens and Bovey Lawyers seeking financial information in relation to their client, the wife, in these proceedings.  As a consequence of the issue of that subpoena, some documents have been produced by the solicitors, and there is no objection to those documents being released.  The crux of the objection appears to be that the husband wants the time costing records, as it were, so that he can set that off against the other material.

2. There have been two objections filed in relation to that subpoena.  The first objection was made by the wife on 16 September 2011 where she says six things: it’s too wide; it’s a fishing exercise; details have been provided; the documents are privileged and came into existence as a result of a lawyer-client relationship; and the use of a subpoena is an abuse of process.  A second, and later, objection was filed by Ms Bev Reaston, a partner of that firm, claiming the documents are protected by solicitor-client privilege.  I take it that those documents are in fact the documents which I alluded to earlier.

3. I am not that far removed from private practice that I do not recall that time recording discloses more than simply the time.  It discloses the purpose and the reason and sometimes other matters which would normally be covered by legal profession privilege.  Having regard to the breadth of the subpoena and the objections so far, I note that the subpoena has been satisfied with the exception of material that was covered by legal profession privilege, and I otherwise give leave for the documents produced by that firm to be inspected, together with the documents produced by the police.  I take it, for the purpose of the exercise, that the objection by Ms Reaston could only have reflected the legal profession privilege of the client, not of the lawyer.

4. There is an application before me for costs by Ms Reaston of O'Reilly Stevens Bovey Lawyers.  A subpoena was issued by the husband on 9 September 2011 to O'Reilly Stevens Bovey Lawyers, and there was an objection to production of part of the documents contained in that subpoena by and on behalf of the wife.  I made a determination in regard to that subpoena disallowing the breadth of it but not setting the subpoena aside, as, sensibly, the documents which were not in issue were produced.  It was, of course, open for the wife and Ms Reaston to seek that the whole of the subpoena be set aside and require the husband to issue another subpoena.

5. The husband said he sent a detailed letter to the Registry to enable the issue of the subpoena.  He sought to tender that letter, and I declined that tender, because I can only frankly have regard to the document itself and the response of the solicitor’s in regard to that document.  The subpoena has not been set aside.  The solicitors have been put to some expense to produce material which the husband would have been liable for in any occasion, as that’s part of the context of the subpoena.  Part of the material that was sought ought not to have been sought, and, as I said, the subpoena was, in my view, too wide.

6. Ms Reaston seeks costs of $500 in relation to the issue of that subpoena and presumably their compliance with it.  I note that from Ms Reaston’s point of view, she filed a handwritten one page document on 22 September and appeared today.  I am aware that Ms Reaston has other matters in addition to this matter, some of which have been heard before, some of which have been heard now.

7. I have regard to section 117 of the Family Law Act 1975 (Cth), which sets out that each party should bear their own costs, and if there is a costs application, I have to determine that in accordance with section 117(2A), which includes the following:-

   The financial circumstances of each of the parties to the proceedings.

   I take it that Ms Reaston isn’t complaining that her financial circumstances are such that she needs an order for costs, but she seeks an order for costs.  I take it that the husband’s financial circumstances are somewhat limited, because he is representing himself, and he has been in this Court for some time and would have expended significant funds.

8. In terms of the conduct of the parties to the proceedings, the husband has from his perspective done all he could to get the material which he thinks is needed for the case.  Ms Reaston, as I said in my reason, adopted a sensible approach in terms of not seeking to have the subpoena set aside but complying with part of it and then arguing the rest of it, which was a sensible and prudent approach.  There is no issues of any of the parties not complying with court orders.  Ms Reaston has been successful in her application, but the husband has not been wholly unsuccessful.

9. There are no offers which have been made available to me and such and I have to have regard to such other matters as the Court considers relevant, that is, that Ms Reaston would have been entitled to get some payment in terms of producing documents, and she has incurred some costs in relation to today.  As to the amount of costs, it seems to me that $500 is a little high. I order that the husband pay the costs of O’Reilly Stevens Bovey Lawyers for the production of documents pursuant to the subpoana and on arguing the subpoena of $300.00, such amount to be paid within two (2) months from today’s date.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 26 September 2011.

Associate:     G Doyle

Date:              26 September 2011