LOVELL & LOVELL

[2011] FamCA 690

FAMILY COURT OF AUSTRALIA

LOVELL & LOVELL [2011] FamCA 690

FAMILY LAW – PROCEDURE – issuing of a subpoena – costs

Family Law Act 1975 (Cth)

APPLICANT: Mr Lovell

RESPONDENT: Ms Lovell

FILE NUMBER: SYC 1876 of 2008

DATE DELIVERED: 18 July 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cronin J

HEARING DATE: 18 July 2011

REPRESENTATION

APPLICANT: Mr Lovell

SOLICITOR FOR THE RESPONDENT: Ms Morozov

Orders

1. Time is extended to allow the Application in a Case filed by the husband on 29 April 2011 to proceed today.

2. The Application in a Case filed 29 April 2011 is dismissed save that with the permission and agreement of B Real Estate, the page with the controversial entry may be copied by the solicitor for the wife and that copy with the non-relevant entries otherwise redacted, be forthwith provided to the husband.

3. The husband is to pay the wife’s costs fixed in the sum of $300.

4. A copy of my Reasons for Judgment be transcribed.

IT IS NOTED that publication of this judgment under the pseudonym Lovell and Lovell 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 SYDNEY

FILE NUMBER:  SYC 1876 of 2008

Mr Lovell

Applicant

And

Ms Lovell

Respondent

REASONS FOR JUDGMENT

1. This is an application in a case which was filed on 29 April 2011.  It seeks to review an order of Registrar Chayna made on 20 April 2011.  The starting point is that the application is out of time, and objection has been taken to me hearing the matter on that basis.

RECORDED  :  NOT TRANSCRIBED

1. It is only out of time by two days.  There is no material which would normally justify an extension of time, but having got to the bottom of this, I think it is appropriate in the circumstances that I allow Mr Lovell to proceed with his application, and I propose to order that time be extended to allow the application to proceed. 

2. The second matter then relates to why the case is before me.  It is an application to review the decision of a Registrar.  As such, it is a de novo hearing, the Registrar having been delegated the power to hear these matters by order under the Rules and under the Family Law Act 1975 (Cth) (“the Act”).

3. On 20 April, the Registrar made an order that the documents produced by the C Bank be returned to that bank.  I propose in the circumstances to continue that order on the basis that there is no logical reason for this Court to hold voluminous documents from organisations such as banks.  If they are going to become relevant again in the proceedings, another subpoena can be issued if the parties have not retained the information.

4. Another matter relates to the question of what was before the Court on 20 April 2011.  The subpoena itself seeks from the C Bank all of the documents contained in a bank account of a company which, on what I can gather, is conducted by one of the parties’ sons.  The company conducts a real estate agency.  It is now clear that the objection before the Registrar was based on the fact that the subpoena was too wide.  It seeks all of the copies of bank statements from a named bank account from 2003 through to 14 April 2011.

5. The law in this Court, as in all courts of civil jurisdiction relating to subpoena, is relatively simple.  A subpoena is an invasion into the privacy of a person who is not a party to the litigation.  The Court makes an order that documents be produced when it allows a subpoena to be filed.  As such, what the C Bank, as a good corporate citizen, has done here, is provide numerous documents, no doubt at expense to the community, if not the litigants, and most of that material, on any view, is irrelevant.  What Mr Lovell wants to see is one entry relating to money that was directed to the relevant bank account by an estate agent who sold a property.  The sum pursued is in the order of $11,000.

6. The period covered by the subpoena is way beyond that period of time, and as the obligation of the person who seeks the subpoena is to show there is some apparent relevance, it is hard to see how anything other than the one entry could be of significance.  Mr Lovell says that once he had the information that the money was in the bank, he would then take the next step, which is to issue a subpoena to B Real Estate or B Pty Ltd.  Unashamedly, that is a fishing expedition.  A fishing expedition is one in which someone goes seeking for the evidence not knowing what the answer is.  All of this material can be found in the proper discovery process. 

7. In my view, the subpoena before the Registrar was wide and fishing but, more importantly, not relevant to the substantive issue in dispute.  I am told by the solicitor for the wife that the objection on the day was that it was too wide, but today what she has conceded is that Mr Lovell, no doubt to satisfy his own curiosity, can have the relevant entry showing the money went into the bank account.  It is hardly a contentious matter.

8. On that basis, the subpoena should have and again must now be, discharged, save for the fact that I am told that in the body of the Court someone from B Real Estate or B Pty Ltd is prepared to concede that that one entry can be copied and the rest of the page blanked out.  Otherwise the documents should go back to the C Bank, where they rightfully belong.

9. The Registrar also made an order for costs against Mr Lovell.  He objects to that order.  He says that on the hearing before the registrar, there were other documents produced to be released under subpoena, and they were not opposed.  He says that he was therefore not wholly unsuccessful.  Be that as it may, the wife lodged an objection in relation to this particular subpoena, and I am told it was only that which was argued. On that basis, Mr Lovell has created a situation where after an objection was lodged, the matter had to be argued, because he pursued the subpoena further.

10. Costs in this jurisdiction are covered by s 117 of the Act. That provision says that each party shall bear their own costs unless there are circumstances justifying a departure from that principle, and if there are such circumstances, the Court must as part of its deliberation, consider the matters set out in s 117(2A) of the Act. None of the matters in s 117(2A) stand alone. Each of the matters is part of the whole picture that needs to be contemplated. In this case, there was no doubt inconvenience. There was no doubt compliance with various orders, but by the same token, the time of the parties was spent which could have otherwise been used elsewhere. I am told that the pool of assets exceeds $1 million, and on that basis, it would seem that neither party is impecunious. There is no justification in those circumstances for me not to make an order for costs, having regard to the time that was wasted.

11. That brings me then to the issue of the review today.  Mr Lovell today has produced an affidavit which I am told by solicitor for the wife she was given and has read and has not taken any objection to.  The affidavit obviously was not before the Registrar, and when the Registrar was obliged to determine the disputed subpoena issue, she did not have the material I now have to determine such a matter.  I have had the advantage that the Registrar did not have.  Clearly I can see what Mr Lovell wants to find out, but in my view, for the reasons I have already set out, it was not an appropriate use of the subpoena process.  Again, this issue could have been resolved by Mr Lovell accepting that he had not taken the right course of action, and that would have avoided the appearance today for the review.  The solicitor for the wife is seeking three and a half hours, and in the circumstances, I think that is appropriate.

ORDERS DELIVERED

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 18 July 2011.

Associate:

Date:  2 August 2011