Hawkins and Hawkins - [2014] FCCA 1071

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAWKINS & HAWKINS

[2014] FCCA 1071

Catchwords:
FAMILY LAW – Practice and procedure – evidence – subpoena – notice of objection – legal professional privilege – implied or express waiver – error of fact asserted by wife.

Legislation:

Evidence Act 1995 (Cth), ss.81, 87, 117, 131, 135, 136
Federal Circuit Court Rules 2001
Freedom of Information Act 1982 (Cth)

Mark & Messina [2009] FamCA 1021

KC & Ors & Shiley Incorporated & Anor [1997] FCA 617

Brown & Commissioner of Taxation (2001) 187 ALR 714
Kosciusko Thredbo Proprietary Limited & New South Wales [2002] NSWSC 329
Mann & Carnell (1999) 201 CLR 1

Switchcorp Proprietary Limited & Ors & Multiemedia Limited [2005] VSC 425

British American Tobacco Australia Services Limited & Cowell [2002] 7 VR 524
Ashfield Municipal Council & Roads and Traffic Authority of New South Wales [2004] NSWSC 917
Goldberg & Ng (1995) 185 CLR 83
Attorney General for the Northern Territory & Maurice (1986) 161 CLR 475

Ampolex Limited & Perpetual Trustee Company (Canberra) Limited & Ors (1996) 137 ALR 28

Bell & Bell [2009] FMCAfam 595

Donoghue & Stevenson [1932] AC 562

Dargan & Chesnik [2010] FMCAfam 726

Osland & Secretary to the Department of Justice [2008] HCA 37

Campbell & United Kingdom (1992) 15 EHRR 137

Foxley & United Kingdom (2001) 31 EHRR 25

Bennett & Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101
Expense Reduction Analysts Group Proprietary Limited & Armstrong Strategic Managing and Marketing (2013) 303 ALR 199
Guinness Peat Properties Limited & Fitzroy Robinson Partnership (a firm) [1987] 1 WLR 1027
Craine & Colonial Mutual Fire Insurance Company Limited (1920) 28 CLR 305

Harman & Secretary of State for the Home Department [1983] 1 AC 280

Books cited:
Stephen Odgers, Uniform Evidence Law, 9^th edition, Thomson Reuters, Australia Limited, 2010

Applicant:

MR HAWKINS

Respondent:

MS HAWKINS

File Number:

CAC 1818 of 2013

Judgment of:

Judge Harman

Hearing dates:

2 and 4 April 2014

Date of Last Submission:

4 April 2014

Delivered at:

Canberra

Delivered on:

4 April 2014

REPRESENTATION

Counsel for the Applicant:

Mr Warren

Solicitors for the Applicant:

Andrew Warren Associates

Counsel for the Respondent:

Mr Rideaux

Solicitors for the Respondent:

Clark Rideaux

ORDERS

The Subpoena addressed to Graeme Hal Blomfield trading as Blomfield Solicitors filed 17 February 2014 is struck out.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

CAC 1818 of 2013

MR HAWKINS

Applicant

And

MS HAWKINS

Respondent

REASONS FOR JUDGMENT

These are proceedings with respect to Part VIII financial relief between the parties Mr Hawkins, who is the Applicant and husband to the marriage founding jurisdiction, and Ms Hawkins, the Respondent and wife.
The proceedings were commenced by an Application filed 18 November 2013.
A Response was filed on 3 February 2014.
Consistent with the Federal Circuit Court Rules 2001 together…

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: [2014] FCCA 1071
Decision Date: 4 April 2014

CaseChat Overview and Summary

In the matter of *Hawkins and Hawkins*, heard before Judge Harman, the dispute concerned a subpoena issued to Graeme Hal Blomfield, trading as Blomfield Solicitors. The specific nature of the underlying dispute between Hawkins and Hawkins is not detailed, but the immediate issue before the court was the validity and enforceability of the subpoena directed to the solicitor.

The central legal issue before the court was whether the subpoena issued to Blomfield Solicitors was properly served and whether it ought to be set aside. This involved an examination of the rules governing the issuance and service of subpoenas in the relevant jurisdiction, and whether those rules had been complied with.

Judge Harman determined that the subpoena addressed to Graeme Hal Blomfield trading as Blomfield Solicitors was to be struck out. The reasoning for this decision, and the specific legal principles applied in relation to the subpoena's validity or service, are not elaborated upon in the provided text.

Consequently, the court ordered that the Subpoena addressed to Graeme Hal Blomfield trading as Blomfield Solicitors, filed on 17 February 2014, be struck out.

Orders

Orders of the court

The Subpoena addressed to Graeme Hal Blomfield trading as Blomfield Solicitors filed 17 February 2014 is struck out.

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

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