Kelleher & Anderson

[2008] FamCA 113

FAMILY COURT OF AUSTRALIA

KELLEHER & ANDERSON [2008] FamCA 113

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

Applicant: K Pty Ltd

Respondent: MS ANDERSON

File Number: MLF 2734 of 2006

Date Delivered: 27 February 2008

Place Delivered: Melbourne

Place Heard: Melbourne

Judgment of: Carter J

Hearing Date: By written submissions

Representation

Advocate for the Applicant: Ms Mimmo

Solicitor for the Applicant: Hicks Oakley Chessell Williams

Counsel for the Respondent: Mr J G Levine

Solicitor for the Respondent: Issac Brott & Co

Orders

1. That there be no orders as to costs.

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

FAMILY COURT OF AUSTRALIA AT  MELBOURNE

FILE NUMBER: MLF 2734 of 2006

K PTY LTD

Applicant

and

MS ANDERSON

Respondent

REASONS FOR JUDGMENT

[Costs]

1. The genesis for these proceedings is a subpoena issued on 3 July 2007 at the request of the wife requiring K Pty Ltd (“the Subpoenaed Party”) to produce documents.  The Subpoenaed Party has sought an order that legal costs be awarded against the wife on an indemnity basis and the wife resists that application.

2. Pursuant to orders made 19 November 2007 the wife and the Subpoenaed Party were granted leave to apply for costs by way of written submissions and a timetable was fixed for the filing of any such submissions and responses.

3. Those submissions have been considered in Chambers.  In addition, I have reread the wife’s Form 2 Application and affidavit in support both filed 18 October 2007 as well as the affidavit sworn or affirmed on 13 November 2007 by Mr C on behalf of the Subpoenaed Party.  Where relevant reference has also been made to other earlier affidavit material.

Background

1. The proceedings in respect of the subpoena comprised one of a number of matters which had been referred to me as Judge Manager of proceedings pending in this Court between the wife and the husband.  The substantive issues involve applications dealing with financial and children’s matters.

2. When the subpoena in question was issued a return date of 17 July 2007 was fixed.  The subpoena required the provision of documents spanning a period of 10 years relating to the husband, both his parents, and related corporate entities.  Mr C’s evidence was that there were more than 12 entities involved.  This was also the submission made on behalf of the Subpoenaed Party which was not disputed in the wife’s submissions.

3. There is no evidence before the Court as to when the subpoena was served and as to what, if any, conduct money was paid.

4. On 16 July 2007 Stephen Farmer and Associates acting on behalf of the Y Family Trust and the husband’s father advised the wife’s solicitors that they were instructed to object to subpoenae which had been issued at the request of the wife, including the subpoena to the Subpoenaed Party.  Enclosed to that letter were copies of Notices of Objection which were…