Luna & Luna - [2021] FedCFamC1F 343

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
Luna & Luna [2021] FedCFamC1F 343

File number(s): BRC 11516 of 2019

Judgment of: HOGAN J

Date of judgment: 23 December 2021

Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – REVIEW OF REGISTRAR’S DECISION – Where the husband applies to review an order made upholding objections to subpoenas taken by the wife – Whether the documents sought to be produced are relevant to the proceedings – Whether production of the documents would identify clients of the legal practice operated by the wife – Whether redaction of the names of the clients of the legal practice is appropriate.

Legislation:
Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Australian Solicitors’ Conduct Rules 2012

Family Law Rules 2004 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
Dutnall & Rallin (No. 2) [2020] FamCAFC 295

Esselbrugge & Esselbrugge [2020] FamCA 155

Martin & Martin and Anor (No. 2) [2014] FamCA 232

White and Tulloch v White (1995) FLC 92-640

Number of paragraphs: 27

Date of hearing: 10 December 2021

Place: Brisbane

Counsel for the Applicant: Dr Brasch QC

Solicitor for the Applicant: Best Wilson Buckley Family Law

Counsel for the Respondent: Mr Brown

Solicitor for the Respondent: Alroe Somers & O’Sullivan Solicitors
ORDERS

BRC 11516 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS LUNA
Applicant

AND:
MR LUNA
Respondent

ORDER MADE BY:

HOGAN J

DATE OF ORDER:

23 DECEMBER 2021

IT IS ORDERED THAT:
1.The Respondent has leave to apply for a review of the orders made by a Registrar on 16 July 2021.
2.The orders made by a Registrar on 16 July 2021 are discharged.
3.The subpoena issued to B Pty Ltd on 4 June 2021 is set aside insofar as it requires the production of documents for the period from 1 July 2017 onwards.
4.The subpoena issued to C Bank on 4 June 2021 is set aside.
5.The subpoena issued to National Australia Bank on 14 June 2021 is set aside.
6.The Respondent has leave to issue a subpoena directed to C Bank which seeks for the period 1 July 2015 to 30 June 2017 copies of each document, email, record or notes that meets the following description:
(a)loan variation document delivered to Suncorp in September 2016 for account …88; and
(b)records of all phone calls, emails and notes made in reference to the account …88; and
(c)all statements of transactions for the period of 1 July 2015 through 30 June 2017 of all accounts held in the name of Ms Luna with Date of Birth …/…/1967; and
(d)all statements of transactions for any accounts held in the name of B Pty Ltd and IRIQ Law Pty Ltd; and
(e)all statements of transaction for the period of 1 July 2015 through 30 June 2017 for account numbers …98, …90 and …28.

7.The Respondent has leave to issue a subpoena directed to National Australia Bank which seeks for the period 1…

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.

Keep reading for free

Create a free CaseChat account to read Luna & Luna and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] FedCFamC1F 343
Decision Date

CaseChat Overview and Summary

The case of Luna & Luna involves a husband who has applied to review orders made by a Registrar upholding objections taken by his wife to various subpoenas he had issued. The primary dispute concerns the relevance of certain documents sought by the husband, which the wife objects to on several grounds, including that their production would reveal the identities of clients of her legal practice. The matter was heard in the Federal Circuit and Family Court of Australia (Division 1) by Hogan J, who delivered his judgment on 23 December 2021.

The key legal issues that the Court addressed include whether the subpoenas were superfluous, whether they lacked precision, and whether the documents sought were relevant to the proceedings. Additionally, the Court had to consider whether the production of the documents would breach confidentiality obligations owed to the wife's clients and whether redaction of the clients' names would be an appropriate remedy. The Court had to balance the husband's right to obtain relevant evidence against the wife's obligation to maintain client confidentiality.

Hogan J found that while some of the objections to the subpoenas were not well-founded, the wife's concerns about client confidentiality warranted consideration. The Court concluded that it was appropriate to permit the wife to redact the names of her clients from the documents produced in response to the subpoenas. Hogan J also determined that the subpoenas should be limited to the period ending on 30 June 2017, which marks the end of the financial year in which the Financial Agreement was signed. Consequently, the Court set aside the subpoenas that sought documents beyond this period and granted the husband leave to issue new subpoenas for the relevant period.

The final orders of the Court include discharging the earlier orders made by the Registrar, setting aside certain subpoenas, and granting the husband leave to issue new subpoenas for the specified period. The wife is also permitted to redact the names of her clients from the documents produced. The Court further directed that the Subpoenaed Documents and Exhibits Office should handle the documents in a manner that ensures the confidentiality of the clients' identities is maintained.

In summary, the Court allowed the husband's application to review the Registrar's orders to a significant extent but made modifications to address the wife's objections, particularly regarding client confidentiality and the temporal scope of the subpoenas.

Orders