Leader and Martin-Leader

[2009] FamCA 170

FAMILY COURT OF AUSTRALIA

LEADER & MARTIN-LEADER [2009] FamCA 170

FAMILY LAW – PRACTICE AND PROCEDURE – SUBPOENAS – application by the husband seeking leave to issue a large number of subpoenas – leave granted to the husband to issue a subpoena to the wife’s accountant seeking production of documents – further consideration of the application to issue other subpoenas adjourned

Family Law Act 1975 (Cth)

APPLICANT: Mr Leader

RESPONDENT: Ms Martin-Leader

FILE NUMBER: ADF 6300 of 1993

DATE DELIVERED: 4 March 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 4 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M.C. Livesey QC

SOLICITOR FOR THE APPLICANT: Allen Burtt Legal Services

COUNSEL FOR THE RESPONDENT: M.C.J. Hoffmann QC

SOLICITOR FOR THE RESPONDENT: Howe Martin & Associates

Orders

1. Leave is given to the husband’s solicitor to issue a subpoena to Mr H and W Accountants Pty Ltd in terms of Annexure “B” to the affidavit of Mr Burtt filed on the 30 January 2009.

2. Further consideration of the application to issue other subpoenas is adjourned to a date to be fixed upon the husband’s solicitors giving the Court and the Wife’s solicitors 21 days notice.

3. The question of all parties’ costs in relation to today’s attendance is reserved generally.

4. The matter is adjourned to the 1 May 2009 at 9.15 am before the Honourable Justice Dawe for mention as to progress of experts’ reports and response of second and third respondents.

5. Wife’s solicitors to notify the second and third respondents of the adjourned date.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 6300 of 1993

MR LEADER

Applicant

And

MS MARTIN-LEADEr

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application I have before me on behalf of the husband to have leave to issue a large number of subpoenas.  The amended application in a case, (document 95) refers to that leave.  Filed at the same time is an affidavit of Mr Burtt, the solicitor for the respondent husband. 

2. There is also before me an affidavit of Mr Martin, dealing in part with some of the issues raised in that affidavit.  Mr Martin is the brother of the wife in these proceedings.

3. The material before the Court indicates that the wife has received a benefit from, or has an interest in, some of the companies referred to in the affidavit of Mr Burtt.  Initially, the affidavit seeks leave to issue subpoenas to a large number of persons and companies, those being set out in paragraph 3 of the affidavit.  Each exhibit, being the proposed draft subpoena, contains a list of a large number of companies and documents to which the subpoenas relate.

4. The matter was before me on 30 January, when the question of the subpoenas was adjourned to 20 February and then to today.

5. The large number of persons and entities proposed to be the subject of subpoenas was raised as an issue by me on the last occasion.  In particular, it appears from the information before the Court that Mr H has been the accountant primarily involved with the wife's interests in, and the operations of, the various entities.

6. I am not satisfied at this stage that the issue of subpoenas to the large number of persons and entities named in the affidavit will be necessary.  Until such time as any information available from Mr H is forthcoming, I am not proposing to permit the issue of the subpoenas to the companies named in Mr Burtt's affidavit other than Mr H and the company for whom he now works or is part of; namely, W Accountants Pty Ltd.

7. I am therefore proposing to give leave to the husband's solicitors to issue a subpoena to Mr H and to W Accountants Pty Ltd seeking certain documents.

8. The particulars of the material that is sought and the time frames for which the material is related have been issues before me.  The proposed subpoena is set out in annexure B to Mr Burtt's affidavit.  The first issue is the dates in relation to which the material is sought.  Many of the subparagraphs in the subpoena relate to a period from 1 January 1988; although there are other sections which refer to different dates, including from 1987, in paragraph 13.

9. I initially suggested when Mr Hoffmann was addressing me on behalf of the wife that I needed to be convinced about a date going back that far.  Mr Livesey for the husband raises the question of the assets of the parties at the time of cohabitation.  Paragraph 9 of Mr Burtt's affidavit says that he was instructed that the parties cohabited between 1988 until Christmas Day in 1989 and then resumed cohabitation upon their marriage in December 1990.  There have subsequently been separations in about October 1994 until December 1994, with a final separation in or about mid-1998.

10. I take into account the submissions of Mr Hoffmann that the discretion of the Court exists as to whether to permit the issue of the subpoena and that the Court should not permit a subpoena to issue which is merely a fishing exercise unrelated to matters which are appropriate issues to be determined by the Court.

11. Nonetheless, having considered the material in the affidavit of Mr Burtt and the background to the litigation in this matter generally (which I have become aware of for a considerable period of time) I am satisfied that the holding of the wife of assets at the time of cohabitation and the interrelationship between the assets that she held then, the assets that she held at the time of the final separation and movements in relation to assets and financial resources in that whole period of time, may well be a matter relevant for the Court to determine when these matters finally come on for determination by this Court.

12. There are however matters in the subpoena which suggest that conclusions might have to be drawn by the recipient of the subpoena; namely, whether the wife has shares in a particular company or an interest in a particular company or has a possible beneficial interest in a trust or other entity. 

13. It is unfortunate, due to the complex nature of the group of companies concerned, that that phrasing is necessary, but the recipient of the subpoena, Mr H, will be able to draw the conclusion from his own knowledge of the interaction between the various entities.  If he is unable to draw a conclusion that the wife has an interest in such a trust or company he will not be obliged to go looking for the information.  That is not the obligation of anyone in receipt of the subpoena; rather, it is material of which they are already aware and which has been previously established from their own point of view.

14. In view of the complex nature of the material before the Court, I am satisfied that it is appropriate to give the husband's solicitors leave to issue the subpoena to Mr H and W Accountants Pty Ltd in the terms of annexure B, notwithstanding that the dates are prior to the separation of the parties and notwithstanding that the material sought is certainly detailed.  I do that on the basis that the material sought relates to the possible beneficial interest or ownership or involvement of the wife in the various entities.

15. At this stage I do not propose to deal further with the application to issue other subpoenas and would adjourn further consideration of that to a date to be fixed, upon the husband's solicitors giving the Court and the wife's solicitors 21 days' notice.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  12 March 2009