Iannello & Iannello - [2018] FCCA 3528

FEDERAL CIRCUIT COURT OF AUSTRALIA

IANNELLO & IANNELLO

[2018] FCCA 3528

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – Objection to subpoena – where the Husband issued a subpoena seeking information of the telephone records of the Wife – purported purpose of subpoena is to demonstrate that Husband had primary care of the children during the relationship – amount of time each parent spends with the children does not define the nature of the relationship with the children – held that subpoena issued for an improper purpose and is an abuse of process – where the Wife issued a subpoena seeking information from the Husband’s solicitors in relation to the Husband’s injury – conceded by Wife that many documents relating to Husband subject to legal professional privilege – orders made for an affidavit from partner of law firm rather than subpoena of documents.

Legislation:

Family Law Act 1975, pt.VII, ss.60B, 60CA, 60CA, 60CC, 65DAA

Cases cited:

Blann & Blann (1983) FLC 91-322
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
Moose & Moose (2008) FLC 93-375
National Employers’ Mutual General Insurance Association Ltd v Waind & Hill [1978] 1 NSWLR 372
R v Mokbel (Ruling No.1) [2005] VSC 410
R v Saleam (1989) 16 NSWLR 14

Applicant:

MS IANNELLO

Respondent:

MR IANNELLO

File Number:

MLC 3008 of 2018

Judgment of:

Judge C. E. Kirton QC

Hearing date:

13 August 2018

Date of Last Submission:

13 August 2018

Delivered at:

Melbourne

Delivered on:

12 December 2018

REPRESENTATION

Counsel for the Applicant:

Ms Smallwood

Solicitors for the Applicant:

Marshalls & Dent & Wilmoth Lawyers

Counsel for the Respondent:

Ms Brennan

Solicitors for the Respondent:

KHQ Lawyers

Solicitors for the Independent Children's Lawyer:

Ms Kourtis, McKean Park Lawyers

ORDERS

The subpoenas filed by the Respondent on 21 June 2018 and 7 August 2018 addressed to The Proper Officer, Telstra Corporation Limited, Level 41, 242 Exhibition Street, Melbourne be set aside.
In response to the subpoena filed by the Applicant on 6 August 2018 addressed to The Proper Officer, Maurice Blackburn, Level 21, 380 La Trobe Street (Maurice Blackburn Subpoena):
(a)Within 28 days from the date of this Order the Respondent file and serve an affidavit from the partner at Maurice Blackburn who has the conduct of the Respondent’s compensation claim arising out of the injury suffered by the Respondent on or about October 2012, deposing to the following matters:
(i)When the compensation claim was commenced and the jurisdiction or jurisdictions commenced in;
(ii)The amount of moneys paid to the Respondent to date, when the moneys were paid, what the moneys were received for and from whom and how they were disbursed;
(iii)The stage the compensation claim is presently at;
(iv)The likelihood of further payments to the Respondent, what such payments would be for, when the Respondent is likely to receive further moneys and the amount.
(v)Annexing all reports in relation to any claim for of any kind arising out of the injury suffered by the Respondent…

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

AGLC: Iannello & Iannello [2018] FCCA 3528
Case: [2018] FCCA 3528
Decision Date: 12 December 2018

CaseChat Overview and Summary

In the Family Court of Australia, Judge C. E. Kirton QC considered objections to subpoenas issued by both the husband and wife. The husband had sought telephone records of the wife, purportedly to demonstrate his primary care of the children during the relationship. The wife had issued a subpoena seeking information from the husband's solicitors concerning his injury.

The court was required to determine whether the husband's subpoena was issued for a proper purpose and constituted an abuse of process, given that the amount of time each parent spends with children does not solely define the nature of their relationship. The court also had to consider the wife's subpoena, particularly in light of the concession that many of the documents sought from the husband's solicitors were subject to legal professional privilege.

The court found that the husband's subpoena was issued for an improper purpose and was an abuse of process, ordering it to be set aside. Regarding the wife's subpoena, the court determined that rather than compelling the production of documents subject to privilege, an affidavit from the partner at the husband's solicitors firm who conducted his compensation claim would be more appropriate. This affidavit was to depose to specific matters concerning the commencement, progress, and financial aspects of the compensation claim, and to annex all relevant reports. The wife's subpoena was otherwise set aside.

The court ordered that the husband's subpoenas be set aside. In relation to the wife's subpoena, the court ordered that within 28 days, the husband's solicitors file and serve an affidavit from the partner conducting the husband's compensation claim, detailing the claim's status and financial aspects, and annexing all relevant reports. The wife's subpoena was otherwise set aside, and the parties' costs were reserved.

Orders

Orders of the court

The subpoenas filed by the Respondent on 21 June 2018 and 7 August 2018 addressed to The Proper Officer, Telstra Corporation Limited, Level 41, 242 Exhibition Street, Melbourne be set aside.

In response to the subpoena filed by the Applicant on 6 August 2018 addressed to The Proper Officer, Maurice Blackburn, Level 21, 380 La Trobe Street (Maurice Blackburn Subpoena):

(a) Within 28 days from the date of this Order the Respondent file and serve an affidavit from the partner at Maurice Blackburn who has the conduct of the Respondent’s compensation claim arising out of the injury suffered by the Respondent on or about October 2012, deposing to the following matters:

(i) When the compensation claim was commenced and the jurisdiction or jurisdictions commenced in;

(ii) The amount of moneys paid to the Respondent to date, when the moneys were paid, what the moneys were received for and from whom and how they were disbursed;

(iii) The stage the compensation claim is presently at;

(iv) The likelihood of further payments to the Respondent, what such payments would be for, when the Respondent is likely to receive further moneys and the amount.

(v) Annexing all reports in relation to any claim for of any kind arising out of the injury suffered by the Respondent on or about October 2012.

(b) That the Maurice Blackburn Subpoena is otherwise set aside.

The parties’ costs be reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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