Kendling and Kendling and Ors (No. 5) - [2008] FamCA 652

FAMILY COURT OF AUSTRALIA

KENDLING & KENDLING AND ORS (NO. 5)

[2008] FamCA 652

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenae

APPLICANT:		Mrs Kendling
RESPONDENT:	Mr Kendling
SECOND RESPONDENT	T Pty Ltd
THIRD RESPONDENT	Jeremy Kendling
FOURTH RESPONDENT	Penelope Kendling
FIFTH RESPONDENT	L Pty Ltd
SIXTH RESPONDENT	A Pty Ltd
SEVENTH RESPONDENT	Mr Z
EIGHTH RESPONDENT	B Ltd
NINTH RESPONDENT	I Pty Ltd
TENTH RESPONDENT	Mr PS

FILE NUMBER:

SYF

2903

2003

DATE DELIVERED:

5 May 2008

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

6 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Beaumont

SOLICITOR FOR THE APPLICANT:

Michael Conley

COUNSEL FOR THE 1^ST RESPONDENT:

Mr Baran

SOLICTOR FOR THE 1^ST RESPONDENT:

Dorrough Smart

COUNSEL FOR THE 2^ND, 3^RD, 4^TH AND 5^TH

RESPONDENTS:

Mr Burreket

SOLICITOR FOR THE 2^ND, 3^RD, 4^TH, AND 5^TH

RESPONDENTS:

Broun Abrahams

SOLICITOR FOR THE 6^TH AND 10^TH RESPONDENTS:

Edwards Legal Services

Orders

That the subpoena issued to Dorrough Smart, Solicitors & Attorneys, filed and dated 22 February 2008, be set aside.
That the subpoena issued to Barkus Edwards Doolan, Family Lawyers, filed and dated 22 February 2008 be set aside.
That the subpoena issued to John S Wenden, Solicitor, filed and dated 22 February 2008, be set aside.
That the subpoena issued to Mr Z, Lawyers, filed and dated 22 February 2008, be set aside.

IT IS NOTED that publication of this judgment under the pseudonym Kendling & Kendling and Ors 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

T Pty Ltd

Second Respondent

And

Jeremy Kendling

Third Respondent

And

Penelope Kendling

Fourth Respondent

And

L Pty Ltd

Fifth Respondent

And

A Pty Ltd

Sixth Respondent

And

Mr Z

Seventh Respondent

And

B Ltd

Eighth Respondent

And

I Pty Ltd

Ninth Respondent

And

Mr PS

Tenth Respondent

REASONS FOR JUDGMENT

proceedings and background

Mr and Mrs Kendling are in dispute as to settlement of property. A number of respondents have been joined in the proceedings. It is not necessary for me to identify these respondents other than to note that one is a company, B Ltd, in which the husband holds 100% of the ordinary shares.
The wife alleged that the husband and B Ltd have failed, on several occasions, to comply with orders for disclosure of various financial matters. Her contentions are set out in detail in the affidavit of Annelise Lang Peterson, solicitor, sworn 4 March 2008. I will not repeat this material.
On 27 February 2008 the husband filed an application for an extension of time for compliance with certain orders, which required disclosure of financial information by himself and B Ltd. His supporting affidavit drew no distinction between himself and the company and, in these reasons, a reference to the husband should be read as…

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: [2008] FamCA 652
Decision Date: 5 May 2008

CaseChat Overview and Summary

In the matter of *Kendling and Kendling and Ors (No. 5)*, Stevenson J of the Supreme Court of New South Wales considered applications to set aside four subpoenas. The subpoenas were issued to various legal practitioners and firms, including Dorrough Smart, Solicitors & Attorneys; Barkus Edwards Doolan, Family Lawyers; John S Wenden, Solicitor; and Mr Z, Lawyers, all dated 22 February 2008. The underlying dispute concerned the parties, Kendling and Kendling, and other unnamed parties, in proceedings before the Court.

The central legal issue before Stevenson J was whether the issued subpoenas were oppressive and therefore liable to be set aside. This required the Court to consider the principles governing the issuance and enforceability of subpoenas, particularly in circumstances where they seek to obtain documents from third parties who are legal representatives of other parties in the litigation. The Court had to determine if the subpoenas were properly issued for the purpose of obtaining relevant evidence or if they constituted an abuse of process.

Stevenson J reasoned that the subpoenas were oppressive and set them aside. The Court applied the principle that a subpoena should not be used as a "fishing expedition" to search for evidence that might exist, nor should it be used to obtain confidential information from a party's legal representatives without proper justification. The Court found that the subpoenas, as issued, were overly broad and sought documents that were not sufficiently particularised or relevant to the proceedings, thereby imposing an undue burden on the recipients. Consequently, the Court ordered that all four subpoenas be set aside.

Orders

Orders of the court

That the subpoena issued to Dorrough Smart, Solicitors & Attorneys, filed and dated 22 February 2008, be set aside.

That the subpoena issued to Barkus Edwards Doolan, Family Lawyers, filed and dated 22 February 2008 be set aside.

That the subpoena issued to John S Wenden, Solicitor, filed and dated 22 February 2008, be set aside.

That the subpoena issued to Mr Z, Lawyers, filed and dated 22 February 2008, be set aside.

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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