LAUER & LINN - [2019] FCCA 1565

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAUER & LINN

[2019] FCCA 1565

Catchwords:
FAMILY LAW – Objection to subpoena – whether the document to be produced may materially assist in cross-examination – whether the document to be produced is an abuse of Court process – orders amended pursuant to Rule 16.05 of the Federal Circuit Court Rules.

Legislation:

Family Law Act 1975 (Cth)

Federal Circuit Court Act 1999 (Cth), s.45

Federal Circuit Court Rules 2001 rr.15A.02, 15A.05, 15A.06, 15A.09 15A.17

Cases cited:

Commissioner for Railways v Small (1938) 38 SR(NSW) 564

Waind v Hill and National Employers’ Mutual General Association Ltd [1978] 1 NSWLR 372

Sharpe & Dalton (1990) FLC 92-167

In the Marriage of Epstein and Epstein (1993) 16 Fam LR 588

Carter v Hayes (1994) 61 SASR 541

Hatton v Commonwealth Attorney General & Ors (2000) 26 Fam LR 570

A v Z [2007] NSW SC 899

Elias v Elias [2014] FCCA 457

Applicant:

MR LAUER

Respondent:

MS LINN

File Number:

SYC 229 of 2016

Judgment of:

Judge Morley

Hearing date:

7 May 2019

Date of Last Submission:

7 May 2019

Delivered at:

Sydney

Delivered on:

12 June 2019

REPRESENTATION

Solicitors for the Applicant:

Ms Nixon of Newnhams Solicitors

The Respondent appeared in person
Solicitors for the Independent Children's Lawyer:	Ms Connor of Legal Aid NSW Sydney Central Family Law

ORDERS

Grant leave to Independent Children’s Lawyer to issue more than 5 subpoenas in this matter.
In relation to subpoena to produce directed to Ms Linn filed 29 August 2018, I strike out from the schedule thereto, paragraphs 4, 5, 6 and 9.
In relation to paragraphs 7 and 8 thereof, I alter the relevant date in each paragraph from 30 June 2013 to 30 June 2015.
In relation to the subpoena to produce directed to Employer filed 29 August 2018, I amend paragraph 2 to read “Copies of all contracts of employment relating to Ms Linn (date of birth … 1978) covering the period 4 January 2014 to the present.”
In relation to paragraph 3, the paragraph is amended to read as follows “Copies of documentation including but not limited to correspondence, file notes, internal memorandum, applications made by Ms Linn relating to reduced hours of work or any amendment to the terms of the employment relating to Ms Linn between 4 January 2014 and the present”.
In relation to the subpoena to produce directed to Employer filed 29 August 2018, I stand compliance with that subpoena over to 17 May 2019.
In relation to the subpoena to produce directed to Ms Linn filed 29 August 2018, I stand compliance with that subpoena over to 4pm on 24 May 2019.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 229 of 2016

MR LAUER

Applicant

And

MS LINN

Respondent

REASONS FOR JUDGMENT

Introduction

On 7 May 2019 I heard an interlocutory matter in…

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 LAUER & LINN

Details

AGLC: Lauer and Linn [2019] FCCA 1565
Case: [2019] FCCA 1565
Decision Date: 12 June 2019

CaseChat Overview and Summary

In the matter of LAUER & LINN, Judge Morley of the Federal Circuit Court considered objections raised by Ms Linn and an employer to subpoenas issued by the Independent Children's Lawyer. The dispute concerned the scope and relevance of documents sought by the Independent Children's Lawyer, which Ms Linn and her employer argued were either irrelevant, an abuse of process, or overly broad.

The court was required to determine whether the documents sought by the subpoenas might materially assist in the cross-examination of witnesses and whether the subpoenas constituted an abuse of the court's process. Additionally, the court had to consider an application by the Independent Children's Lawyer for leave to issue more than five subpoenas in the proceedings.

Judge Morley reasoned that while the general principle is that subpoenas should not be used as a fishing expedition, documents that may materially assist in cross-examination are generally permissible. The court applied this principle by striking out certain paragraphs of the subpoena to Ms Linn, deeming them to be an abuse of process or irrelevant. However, the court amended other paragraphs of both subpoenas, altering dates and refining the scope of the documents sought to ensure their relevance and materiality to the proceedings, particularly concerning employment and contractual arrangements. Leave was granted for the Independent Children's Lawyer to issue more than five subpoenas.

The court made several orders, including striking out specific paragraphs from the subpoena to Ms Linn, amending dates in other paragraphs of that subpoena, and amending paragraphs of the subpoena to the employer to clarify the period and nature of employment documentation sought. Compliance with both subpoenas was adjourned to later dates.

Orders

Orders of the court

Grant leave to Independent Children’s Lawyer to issue more than 5 subpoenas in this matter.

In relation to subpoena to produce directed to Ms Linn filed 29 August 2018, I strike out from the schedule thereto, paragraphs 4, 5, 6 and 9.

In relation to paragraphs 7 and 8 thereof, I alter the relevant date in each paragraph from 30 June 2013 to 30 June 2015.

In relation to the subpoena to produce directed to Employer filed 29 August 2018, I amend paragraph 2 to read “Copies of all contracts of employment relating to Ms Linn (date of birth … 1978) covering the period 4 January 2014 to the present.”

In relation to paragraph 3, the paragraph is amended to read as follows “Copies of documentation including but not limited to correspondence, file notes, internal memorandum, applications made by Ms Linn relating to reduced hours of work or any amendment to the terms of the employment relating to Ms Linn between 4 January 2014 and the present”.

In relation to the subpoena to produce directed to Employer filed 29 August 2018, I stand compliance with that subpoena over to 17 May 2019.

In relation to the subpoena to produce directed to Ms Linn filed 29 August 2018, I stand compliance with that subpoena over to 4pm on 24 May 2019.

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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