Loomis and Thurston and Anor - [2016] FamCA 269

FAMILY COURT OF AUSTRALIA

LOOMIS & THURSTON AND ANOR

[2016] FamCA 269

FAMILY LAW – EVIDENCE – Subpoena – Whether the husband should be granted leave to use subpoenaed material – Where the documents intended to be used to support appeals to the Full Court and applications to Legal Services Commission, Government and Police authorities – Where the subpoenaed documents not in evidence before the Court at first instance – Where husband would have to seek leave from the Full Court to adduce fresh evidence – Where the husband alleges the wife’s former solicitor has committed perjury, “disentitling conduct” and “professional misconduct” – Where the husband’s application designed to “harass, annoy and/or cause detriment” to the wife’s former solicitor – Application dismissed.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 92A(2), 102Q, 102QB & 118
Legal Profession Act 2007 (QLD) Part 3.3 Division 6

CDJ v VAJ (1998) 197 CLR 172
Marsden & Winch (2013) FLC 93-560

APPLICANT:

Mr Loomis

RESPONDENT:

Ms Thurston

INTERVENER:

Mitchell Lawyers

FILE NUMBER:

BRC

1010

2012

DATE DELIVERED:

27 April 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

19 April 2016

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

In Person

SOLICITOR FOR THE INTERVENER:

Mr Mitchell

Mitchell Lawyers

Orders

That the application brought by Mr Loomis for leave to use documents produced by Mitchell Lawyers to this Court in November 2015 pursuant to subpoena in his appeals NA 064/15 and NA 7/2016 and in the Legal Services Commission and other Government and Police authorities is dismissed.
Mr Loomis shall forthwith return any and all copies of those documents produced by Mitchell Lawyers to this Court pursuant to subpoena in November 2015 to the Court.
The Registry Manager of the Brisbane Registry of this Court shall return the documents produced by Mitchell Lawyers to this Court pursuant to subpoena in November 2015 along with any and all copies of those documents returned to this Court by Mr Loomis pursuant to paragraph (2) hereof as soon as practicable.
Mr Loomis shall be heard in respect of the application by Mitchell Lawyers for him to pay their costs of and incidental to the hearing and determination of these applications.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Loomis & Thurston and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1010 of 2012

Mr Loomis

Applicant

And

Ms Thurston

Respondent

And

Mitchell Lawyers

Intervener

REASONS FOR JUDGMENT

On 25 January, 2016, Mr Loomis was given leave by me to file an Application in a Case and supporting affidavit in these proceedings. That came before me in my judicial duty list on 15 February, 2016.
By paragraph 3 of that Application in a Case, Mr Loomis seeks the Court’s leave to use documents produced pursuant to subpoena by Mitchell Lawyers in the appeal 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.

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Details

Case: [2016] FamCA 269
Decision Date: 27 April 2016

CaseChat Overview and Summary

In the matter of *Loomis and Thurston and Anor*, Forrest J of the Federal Court of Australia considered an application by Mr Loomis for leave to use documents previously produced to the Court by Mitchell Lawyers pursuant to subpoena. These documents were originally produced in November 2015 in relation to Mr Loomis's appeals NA 064/15 and NA 7/2016, and also in proceedings involving the Legal Services Commission and other government and police authorities.

The primary legal issue before the Court was whether Mr Loomis should be granted leave to utilise these subpoenaed documents for his current applications. The Court was required to determine the appropriate course of action regarding the possession and use of these documents, particularly in light of Mitchell Lawyers' involvement and potential costs claims.

Forrest J dismissed Mr Loomis's application for leave to use the documents. The Court ordered that Mr Loomis must immediately return all copies of the documents produced by Mitchell Lawyers to the Court. Subsequently, the Registry Manager of the Brisbane Registry is to return the original documents, along with any copies returned by Mr Loomis, to Mitchell Lawyers. Mr Loomis was also informed that he would be heard regarding Mitchell Lawyers' application for him to pay their costs associated with these applications.

Orders

Orders of the court

That the application brought by Mr Loomis for leave to use documents produced by Mitchell Lawyers to this Court in November 2015 pursuant to subpoena in his appeals NA 064/15 and NA 7/2016 and in the Legal Services Commission and other Government and Police authorities is dismissed.

Mr Loomis shall forthwith return any and all copies of those documents produced by Mitchell Lawyers to this Court pursuant to subpoena in November 2015 to the Court.

The Registry Manager of the Brisbane Registry of this Court shall return the documents produced by Mitchell Lawyers to this Court pursuant to subpoena in November 2015 along with any and all copies of those documents returned to this Court by Mr Loomis pursuant to paragraph (2) hereof as soon as practicable.

Mr Loomis shall be heard in respect of the application by Mitchell Lawyers for him to pay their costs of and incidental to the hearing and determination of these applications.

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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