K & K - [2009] FamCA 87

FAMILY COURT OF AUSTRALIA

K & K

[2009] FamCA 87

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenae - Test for Apparent Relevance not established – Apparent Relevance to proceedings must be shown on material before the court and must be more than broad generalisations

Family Law Rules 2004 (Cth)

A & A & Ors [2005] FamCA 561
Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98
Deffia & Zuddro & Ors [2008] FamCA 643
Hatton v Attorney General (Cth) & Ors (2000) 26 FamLR 570
National Employers’ Mutual General Association Limited v Waind & Hill [1978] 1 NSWLR 372
O’Hara & O’Hara & Ors [2007] FamCA 1346

APPLICANT:

Ms K

RESPONDENT:

Mr K

SUBPOENAED PARTIES:

Mr W, Mr A, Mr R, Mr S

FILE NUMBER:

MLF

1913

2001

DATE DELIVERED:

6 January 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

17 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR SPICER

SOLICITOR FOR THE APPLICANT:

MILLS OAKLEY

COUNSEL FOR THE RESPONDENT:

MR HARRIS

SOLICITOR FOR THE RESPONDENT:

KENNA TEASDALE LAWYERS

COUNSEL FOR THE SUBPOENAED PARTIES:

MS MCMILLAN

SOLICITOR FOR THE SUBPOENAED PARTIES:

KENNEDY WISEWOULDS

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1913 of 2001

MS K

Applicant

And

MR K

Respondent

And

MR W, MR A, MR R, MR S

Subpoenaed Parties

REASONS FOR JUDGMENT

This is another part of a long-running property dispute. The substantive issue is predominantly about whether the husband now has an interest in his family’s business enterprises.
The immediate issue is about the right of the wife to have access to material which has been quite properly produced under subpoenae.
Both parties were granted permission on 3 October 2008 to issue further subpoenae returnable before me on 17 December 2008.
The wife issued subpoenae to each of the directors and shareholders of CR Pty Ltd: Mr S; Mr W; Mr R and Mr A. For reasons which I shall endeavour to set out, the four men are all linked.
The subpoenae sought documents relating to:
(a)the establishment/ownership of CR Pty Ltd;
(b)the acquisition of shares by CR Pty. Ltd in OP Pty Ltd; and
(c)the acquisition by OP Pty Ltd of a unit at S.
Those parties are jointly represented and have filed a notice of objection to those subpoenae seeking to have them set aside on the following bases:
(a)The documents sought in the schedule to the subpoena are irrelevant to the issues that are in dispute in these proceedings, or in the alternative, have no apparent relevance to the issues in dispute in these proceedings;
(b)The attempt to seek the documents referred to in the schedule to the subpoena involves an abuse of process and the documents are not sought for any purpose connected with these proceedings;
(c)Further, or in the…

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 K & K

Details

AGLC: K & K [2009] FamCA 87
Case: [2009] FamCA 87
Decision Date: 6 January 2009

CaseChat Overview and Summary

The case of *K & K* concerned a dispute between the parties, K and K, heard before Cronin J. The precise nature of the dispute is not detailed in the provided text, but it was a matter requiring judicial determination.

The central legal issue before the court was the interpretation and application of certain legal principles relevant to the dispute between K and K. The specific legal questions the court was required to address are not explicitly stated in the provided text.

Cronin J's reasoning and the legal principles applied in reaching a decision are not detailed in the provided text. Therefore, a summary of the court's reasoning and the legal principles it applied cannot be provided.

As the provided text does not contain information regarding the court's final orders or the outcome of the case, this cannot be stated.

Orders