Kendling and Kendling and Anor (No. 3)

[2008] FamCA 352

FAMILY COURT OF AUSTRALIA

KENDLING & KENDLING AND ANOR (NO. 3) [2008] FamCA 352

FAMILY LAW – PRACTICE AND PROCEDURE – SUBPOENA – dismissing application to set aside subpoena

Family Law Act 1975 (Cth)

APPLICANT: Mrs Kendling

RESPONDENT: Mr Kendling

2^nd RESPONDENT: B Ltd

FILE NUMBER: SYF 2903 of 2003

DATE DELIVERED: 21 May 2008

PLACE DELIVERED: Parramatta

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 23 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson SC

SOLICITOR FOR THE APPLICANT: Michael Conley Lawyers

COUNSEL FOR THE RESPONDENTS: Mr Baran

SOLICITOR FOR THE RESPONDENTS: Dorrough Smart  Solicitors

ORDERS

Orders made 23 April 2008

1. That the application to set aside the subpoena to Dorrough Smart Solicitors and Attorneys dated 8 April 2008 be dismissed and that documents be produced in accordance with that subpoena. 

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2903 of 2003

Mrs Kendling

Applicant

And

Mr Kendling

Respondent

And

B Ltd

2^nd Respondent

REASONS FOR DISMISSING HUSBAND’S APPLICATION TO SET ASIDE SUBPOENA

1. On 23 April 2008 Senior Counsel for the wife sought to call upon a subpoena that was issued on behalf of the wife to Dorrough Smart Solicitors & Attorneys on 8 April 2008.  The subpoena requested the production of those parts of the accounting records as kept between the husband, the company and Dorrough Smart which would not attract legal professional privilege.

2. The subpoena was objected to on three bases:-

   2.1.First, inadequate conduct money was provided.  In the context of this case (where the husband has an outstanding order that he pay one million dollars to the wife by way of interim costs), that objection has no substance. 

   2.2.Secondly, that the subpoena was wide and asked for every single solitary receipt, account or bill that has ever been sent in the entirety of the proceedings.  I am not satisfied that the subpoena actually does that, but even if it did that would not be a proper basis for objecting to a subpoena.

   2.3.Thirdly, Counsel for the husband submitted that the subpoena went to matters which are of no relevance to the proceedings before me.

3. In relation to this third objection, there was listed before me two matters.  First a sentencing hearing and secondly an application for costs. 

4. In my view the documents are apparently relevant to the costs application.

5. More significantly however, the husband, at the commencement of the sentencing hearing on the 23 April 2008, tendered three character references, each stating that the matter for which the husband was convicted was “totally out of character”.  Senior Counsel for the husband sought to establish, beyond reasonable doubt, that the husband had continued to aid and abet B Ltd’s breach of the order of 27 September 2007 by having B Ltd continue to lend to the husband monies for his legal fees. 

6. Counsel for the husband asserted that the orders of Cohen J of 4 July 2007 made a specific category of advance, that is legal costs and disbursements, against which the husband could use his shares in B Ltd as security.  Counsel for the husband submitted that the way the order of 27 September 2007 is couched is that B Ltd, is restrained from making any loans, that is, loans to any other person or entity and the order does not extend to legal costs.  He submitted it was a general injunction but not in respect of legal costs. 

7. I made it clear to Counsel for the husband on 23 April 2008 that in my view order number 9 of 27 September 2007 was very clear in its terms.  That order prohibits B Ltd from paying the husband’s legal costs by lending the husband money. 

8. The documents requested under the subpoena may go to the issue of whether or not the husband had been involved in further breaches of order 9 made 27 September 2007. 

9. None of the submissions made by Counsel for the husband provided any basis to set the subpoena aside and I ordered production of documents in accordance with the subpoena. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate: 

Date:  21 May 2008