Lauritz and Lauritz & Ors - [2015] FamCA 635

FAMILY COURT OF AUSTRALIA

LAURITZ & LAURITZ AND ORS

[2015] FamCA 635

FAMILY LAW – PRACTICE AND PROCEDURE – OBJECTION TO SUBPOENA – Where the wife has issued a subpoena seeking information from various companies associated with the husband’s family – Where the companies dispute the relevance of the documents sought to the proceedings between the husband and the wife – Where the wife asserts that the husband may obtain a financial resource through his involvement in the companies – Where the husband denies any legal or beneficial interest in the companies – Where the court finds some categories of the documents sought have apparent relevance – Where a subpoena was found to be too wide.

Family Law Act 1975 (Cth) s 121
Family Law Rules 2004 (Cth) rule 15.27

Andrew Garrett Wine Resorts & Anor v National Australia Bank Limited (No. 6) (2005) 92 SASR 419
Hatton, V.F. v Attorney General of Commonwealth of Australia, Commonwealth Bank of Australia and Commonwealth Development Bank of Australia (2000) FLC 93-038
Mulley & Marney v Manifold (1959) 103 CLR 341
National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372
Sadek and Ors & Hall and Anor [2015] FamCAFC 23
Sharpe and Dalton (1990) FLC 92-167
White and Tulloch v White (1995) FLC 92-640

APPLICANT:

Ms Lauritz

FIRST RESPONDENT:	Mr Lauritz
SECOND RESPONDENT	B Pty Ltd
THIRD RESPONDENT	C Pty Ltd
FOURTH RESPONDENT	D Pty Ltd
FIFTH RESPONDENT	E Pty Ltd
SIXTH RESPONDENT	Ms F Lauritz
SEVENTH RESPONDENT	Mr G Lauritz
EIGHT RESPONDENT	H Accountants

FILE NUMBER:

SYC

2896

2014

DATE DELIVERED:

3 July 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

21 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lethbridge SC

SOLICITOR FOR THE APPLICANT:

Mcdonell Milne Toltz Family Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Mr Campton SC

SOLICITOR FOR THE FIRST

RESPONDENT:

Solari & Stock Lawyers

COUNSEL FOR THE 2^ND TO 8^TH RESPONDENTS

Mr Givney

SOLICITOR FOR THE 2^ND TO 8^TH RESPONDENTS

MCW Lawyers

Orders

IT IS ORDERED

The objection raised by B Pty. Ltd. to the subpoena served upon it by the wife is upheld in relation to paragraph 9 at this time. The balance of the objection is otherwise dismissed.
The applicant wife has leave to press for compliance with paragraphs 9 of the subpoena served upon B Pty. Ltd. should she be in a position to establish the relevance of the documents sought in those paragraphs to the courts satisfaction.
As additional comfort to the directors and shareholders of the 2^nd to 5^th respondents, the wife is restrained, until further order, from disseminating, publishing or repeating any information learned from the production of documents by B Pty. Ltd., C Pty Ltd, D Pty. Ltd., E Property Limited., pursuant to the subpoena issued against the companies at the request of the wife, otherwise than in the conduct of the proceeding in this court (this to include the ability to…

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 Lauritz and Lauritz & Ors

Details

AGLC: Lauritz and Lauritz & Ors [2015] FamCA 635
Case: [2015] FamCA 635
Decision Date: 3 July 2015

CaseChat Overview and Summary

In *Lauritz and Lauritz & Ors*, the wife sought to issue subpoenas to various companies associated with the husband's family, seeking documents and information. The companies objected to the subpoenas, arguing that the documents sought were not relevant to the family law proceedings between the husband and wife. The wife contended that the husband might be able to obtain a financial resource through his involvement with these companies, while the husband denied any legal or beneficial interest in them. The matter came before Le Poer Trench J.

The central legal issue before the court was whether the documents sought by the wife's subpoenas were relevant to the proceedings, particularly in light of the husband's denial of any interest in the companies. The court was required to determine the scope of permissible discovery in family law proceedings when a party asserts that a third-party entity may constitute a financial resource, even if the respondent denies direct ownership or interest. This involved assessing the apparent relevance of the requested documents and considering whether any part of the subpoena was overly broad.

Le Poer Trench J found that some categories of documents sought by the wife had apparent relevance to the proceedings, particularly concerning the potential for the husband to access financial resources through his involvement with the companies. However, the court also determined that certain aspects of the subpoenas were too wide. Consequently, the court upheld the objection to paragraph 9 of the subpoena served on B Pty. Ltd. at that time, while dismissing the balance of the objection for that company. Objections by C Pty Ltd., D Pty. Ltd., and E Property Limited were dismissed in part or entirely, with leave granted to the wife to press for compliance with remaining paragraphs if she could establish their relevance. The objection by H Accountants was upheld and the subpoena set aside.

The court ordered that the parts of the subpoenas not subject to successful objection were to be complied with by a specified date. Furthermore, the wife was restrained from disseminating or publishing information obtained from the produced documents, except for the conduct of the proceedings and to experts retained on her behalf. Copies of the documents were to be retained by the wife's legal representatives and returned to the companies within 28 days of the conclusion of the proceedings.

Orders

Orders of the court

IT IS ORDERED

The objection raised by B Pty. Ltd. to the subpoena served upon it by the wife is upheld in relation to paragraph 9 at this time. The balance of the objection is otherwise dismissed.

The applicant wife has leave to press for compliance with paragraphs 9 of the subpoena served upon B Pty. Ltd. should she be in a position to establish the relevance of the documents sought in those paragraphs to the courts satisfaction.

As additional comfort to the directors and shareholders of the 2nd to 5th respondents, the wife is restrained, until further order, from disseminating, publishing or repeating any information learned from the production of documents by B Pty. Ltd., C Pty Ltd, D Pty. Ltd., E Property Limited., pursuant to the subpoena issued against the companies at the request of the wife, otherwise than in the conduct of the proceeding in this court (this to include the ability to publish to any expert retained on behalf of the wife through her solicitors who appear on the record of this proceeding). FURTHER any copies of the documents produced by B Pty. Ltd., C Pty Ltd, D Pty. Ltd., E Property Limited., pursuant to the subpoena are to be retained (subject to any further order of the court) in the control of the wife’s legal representatives during the currency of the proceeding in this court and returned to the company producing the documents to the court pursuant to the subject subpoena within 28 days of the conclusion of the proceeding in this court.

The objection made by C Pty Ltd. to the subpoena issued on 25 March 2015 is dismissed so far as it relates to paragraphs 1, 2, 3, 4 thereof.

The applicant wife has leave to press for compliance with the balance of the paragraphs of the subpoena served upon C Pty Ltd should she be in a position to establish the relevance of the documents sought in those paragraphs to the courts satisfaction.

The objection made by D Pty. Ltd. to the subpoena issued by the court on behalf of the wife on 25 March 2015 is dismissed.

The objection made by E Pty. Ltd. to the subpoena issued by the court on behalf of the wife on 25 March 2015 is dismissed.

The objection made by H Accountants, to the subpoena issued by the court on behalf of the wife on 25 March 2015 is upheld. The subpoena is set aside.

So much of the subpoena issued to B Pty. Ltd., C Pty Ltd., D Pty. Ltd. and E Property Limited as has not been the subject of successful objection as set out in this order are to be complied with on or before 11.30 a.m. on 22 July 2015 at which time the subpoena is listed before the Registrar.

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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